Employment Law and the Wiretap Trap

Workplace electronic messages — text messages, email, voicemail and other electronically stored information — can be a trap for the unwary, as seen in the infamous Supreme Court “sexting” case involving Jeff Quon, who was an officer with the Ontario Police Department in Southern California.

The basic facts of the case are this: Quon used a handheld device provided by his employer to communicate with both his wife and his mistress. Those text messages might never have come to light but for the poor judgment of two police dispatchers, Sally and April. Sally learned that her boyfriend, a member of the Hell’s Angels motorcycle gang, was being followed by a narcotics agent, so she asked April to warn him. April then texted him on her employer issued handheld device. Sally and April got caught by their employer, and in the subsequent investigation, Jeff Quon’s text messages were discovered, because, as luck would have it, April was his mistress. And, when, at the police department’s request, the service provider, Arch Wireless, turned over copies of all the text messages, it was all over for Jeff Quon. The district court observed that, “many of the text messages sent and/or received by Quon’s pager while he was on duty were, to say the least, sexually explicit in nature.”

Jeff Quon’s lawyer, apparently believing that the best defense is a good offense, sued the police department and the service provider, alleging that, in obtaining Quon’s text messages from the service provider, both the employer and the service provider violated federal wiretap laws. Ordinarily, an employer would not expect to be accused of wiretapping unless an employee’s phone was tapped. But, because of the language Congress used in the law, employers need to be careful about obtaining an employee’s electronically stored records, including transcripts of text messages and emails, even when those records are created using the employer’s own resources.

In 1986, Congress passed the Electronic Communications Privacy Act to afford privacy protection for electronic communications. As part of this package, Congress enacted the Stored Communications Act (“SCA”), which was designed to address access to stored wire and electronic communications and transactional records.

The SCA gave individuals (such as employees) the right to sue any person or entity (including an employer) for divulging the contents of stored electronic communications, such as text messages or emails. Quon filed suit in federal court against his employer and the service provider, Arch Wireless, for divulging his racy text messages. He didn’t get very far with the trial court; however, the Court of Appeals found in his favor, ruling that Arch Wireless was liable for violation of the SCA because it provided Quon’s text messages to his employer. And, it held that the employer was liable for unlawfully searching through Quon’s text messages.

Arch Wireless’ attempt to seek review was rejected by the U.S. Supreme Court, and they were found liable to Jeff Quon. The Supreme Court did, however, agree to review the employer’s liability for an illegal search. The Supreme Court agreed with the Court of Appeals that Quon had some expectation that his text messages were private, and not subject to review by his employer. The court observed that, “Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.” And, perhaps more important, the Court also noted that, “… employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.”

After a careful review of the facts and the law surrounding Quon’s text messages, the Supreme Court concluded that the employer’s review of the text messages was reasonable because there was a legitimate reason for the review, and the review was not “excessively intrusive.”

The labor and employment attorneys at our firm have found that having a clear policy in place before a crisis is confronted is not only prudent, but essential. A specific policy addressing the use, storage, and privacy expectations regarding these communications should be clearly stated in the employer’s policy handbook.
Steven W. Seymour is an accomplished litigator with an emphasis on labor and employment law. As an expert in civil litigation, Steven focuses primarily on cases involving disability, sexual discrimination, wrongful termination, and non-compete agreements. Contact Steven directly at sws@SamuelsLaw.com.