By Eve Tahmincioglu
msnbc.com contributor
updated 4/19/2010 7:42:03 PM ET 2010-04-19T23:42:03

The future of employee privacy rights in the workplace may hinge on a case that the U.S. Supreme Court is taking up involving a cop and sexting.

Jeff Quon, a California SWAT sergeant, was given a pager from his employer, the Ontario Police Department. He was later found to have used the device not only for work but also for pleasure, often sending sexually explicit text messages to his wife and his mistress.

Quon’s employer found out about his personal use of the pager after an investigation looking into excessive texting at the department.

Quon cried foul, saying he thought the messages were confidential.

As a result, Quon; his wife Jerilyn, who is also a police officer; his mistress, April Florio, who is a department dispatcher; and another sergeant, Steve Trujillo; sued the department, the city of Ontario, and the paging service company, Arch Wireless Operating Company, for violating their privacy rights.

A lower court decided in the employees’ favor in 2008; the defendants appealed. Now the highest court in the land has decided to hear the case, and privacy advocates and labor law experts are waiting to see how the court will decide.

“This could be a game changer when it comes to monitoring by employers and electronic privacy for employees,” said Nancy Flynn, executive director for The ePolicy Institute and author of “The e-Policy Handbook.”

Line blurred between work, personal life
The outcome could have far-reaching ramifications for worker privacy rights in the digital age, a right that until now many employees have largely had to leave at the office or factory door. The case comes at a time when the lines between work and personal lives have blurred thanks to technological advances such as texting and e-mail, giving workers the ability to work anywhere and any time, and a grueling recession that has many workers working harder and longer.

As a result, work time and work equipment are often used for personal matters such as e-mailing a spouse about a child’s soccer game or texting a friend about what time to meet at the local bar after work.

Indeed, a 2009 survey by the ePolicy Institute and the American Management Association found that 79 percent of employees had used e-mail to send or receive personal messages.

So, can your boss spy on such private communications? Many are doing just that, and reprimanding or even firing workers in some cases.

According to ePolicy Institute’s surveys, co-sponsored by the AMA:

  • 83 percent of employers have rules and policies in place restricting personal use of company equipment.
  • 28 percent of employers have fired workers for e-mail misuse, and of those, 26 percent said it was for "excessive personal use."
  • Of the companies that monitor e-mail, 73 percent use technology tools to automatically monitor e-mail and 40 percent manually read and review e-mails.

“The conventional wisdom has been that if the employer owns the equipment or system, they can do whatever they want,” said Ann Hodges, professor of law at the University of Richmond.

However, she added, recent court decisions and a judgment by the Supreme Court in favor of Quon could make it harder for employers to defend such snooping.

Expectation of privacy
In Quon’s case, the 9th Circuit Court of Appeals found that the officer had a reasonable expectation of privacy because he paid for the overusage charges on his pager, and the police department had lax procedures for auditing employee messages.

Even though Quon's case is about public employees, and the lower court’s decision was based on the Fourth Amendment — which guards against unreasonable search and seizure by the government — private employees could also be affected if the Supreme Court upholds the lower court’s ruling, Hodges said.

“Because the court would be deciding what’s a reasonable expectation of privacy, people would use the Supreme Court ruling” to bolster their cases they were unfairly spied on in the workplace, she said. “In most cases, there haven’t been a lot of state law cases because of relatively narrow interpretation.”

A high court decision in the employees’ favor would open up the possibility that not all spying of employees, public or private, will pass legal muster, she said.

Another recent court decision that has bolstered worker privacy rights involved a New Jersey woman who was sending e-mails to her attorney via her own, private Yahoo account.

Marina Stengart, a former nursing manager for Loving Care Agency, a home health care company, had exchanged e-mails with her lawyer on a company computer before leaving her job and filing a discrimination claim against the firm. The company attorneys were able to dig up those e-mails and planned to use them in their defense, but Stengart sued, citing breach of privacy.

Late last month, the New Jersey Supreme Court upheld a lower court’s decision that found that the company violated Stengart’s privacy rights due to attorney-client privilege.

Changing policies
The ruling also took into account the evolving issue of privacy in today’s 24-7, technological workplace, said Joseph Poluka, an attorney with Blank Rome in Philadelphia.

“The New Jersey Supreme Court in Stengart wrote that, as ‘forms of technology evolve, the line separating business from personal activities can easily blur,’” Poluka said. “The court said it was not encouraging a ‘zero-tolerance policy’ by employers, because such would be ‘unworkable and unwelcome in today's dynamic and mobile workforce.’”

At the same time, he added, the court stated that companies can adopt electronic communication policies “to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies.”

A key question with many of these recent workplace privacy cases, Poluka added, is whose interest prevails: the employee's privacy or the legitimate interests of the business? “The courts continue to wrestle with this, and employer policies will adapt as the law develops,” he said.

Indeed, what may emerge from all this is potentially stricter policies on the part of companies, some labor law experts predicted, because allowing even limited personal use may make an employer’s case weaker if they spy on an employee and then are sued for it.

Devjani Mishra, a labor and employment lawyer with Seyfarth Shaw LLP, said, “the rise in workplace litigation and government regulatory efforts demonstrates the need to set clear guidelines for employees' Internet and social networking activities at the workplace.”

It’s unclear what the future will hold for workers when it comes to privacy rights on the job, but surely employees would be wise to keep tabs on how the Supreme Court handles the Quon case. (A ruling is expected this summer.)

“If indeed it goes against the police officers, I think any employee has to sit up and take notice,” said Villanova University’s Robert Langran, a political science professor. “If they can’t get protection, then nobody gets it.”

Eve Tahmincioglu writes the weekly "Your Career" column for msnbc.com and chronicles workplace issues in her blog, CareerDiva.net.

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