Hunton Employment & Labor Perspectives

The Supreme Court last week agreed to decide whether a California police department violated the privacy rights of an employee police officer by reading sexually-explicit text messages on the officer’s employer-issued pager.  The case, Quon v. Arch Wireless Operating Company, is on appeal from the Ninth Circuit, which ruled that in certain circumstances a public employee has a reasonable expectation of privacy in personal text messages -- even when those messages are sent on a device owned and provided by the employer. The decision is directly at odds with current employee privacy law, which generally holds that employees have no reasonable expectation of privacy in electronic communications on employer-provided electronic devices, and it adds to the list of headaches for employers adjusting to the exploding use of instant messaging in the workplace.

“Texting”--the preferred communication medium among younger employees--differs from other forms of communication in ways making it easier to cross the line into inappropriate content.  Texts are brief, spontaneous, and informal -- even more so than e-mail.  A text can contain only a limited number of characters, so it is customary to abbreviate (“LOL”; “TLK2UL8R”) and to omit even the minimal greetings and pleasantries usually contained in email messages.  With it’s rapid back-and-forth, texting feels more like a telephone conversation than written correspondence.  But unlike a telephone call, a written record of text communications remains and can serve as powerful evidence in sexual harassment lawsuits -- generating the buzzword “textual harassment.”

Use of text messages as evidence in discrimination claims is on the rise.  According to a recent article in the National Law Journal:

Perhaps the biggest culprits...are male bosses who are sending scandalous text messages to female employees, asking them out on dates or promising promotions in exchange for sexual favors. These texts are explosive evidence in lawsuits, and pretty tough to dispute.
--“Textual Harassment” on the Rise, The National Law Journal, July 20, 2009

Inappropriate text messages were key evidence in several recent, high profile employment cases, including a claim by four waitresses against a manager at a Famous Dave’s restaurant in West Virginia.  In support of their claim, the waitresses produced text messages from the supervisor requesting sexual favors.  Text messages appear similarly pivotal in a pending Connecticut harassment case against World Wrestling Entertainment, Inc.  The plaintiff-employee in that case claims that a high-level manager made sexual advances to her in late-night text messages.

Given this exposure, employers’ anti-harassment policies should treat text messages sent on devices owned and provided by the employer as business records that should be monitored for inappropriate content and managed accordingly.  But the sheer volume of text messages can make monitoring impractical.  In a one-month period (January 2009), for example, AT&T processed 31.1 billion text messages.  (Statement of Wayne Watts, Senior Executive Vice President & General Counsel, AT&T, Inc., Before Subcommittee on Antitrust, Competition Policy & Consumer Rights, Hearing on Cell Phone Text Messaging Rate Increases and the State of Competition in the Wireless Market, June 16, 2009).  Monitoring such a vast number of exchanges could prove impossible even for the most diligent employer.  And if the Ninth Circuit’s opinion in Quon is affirmed, such monitoring may violate the privacy rights of public employees--imposing on employers (at least those in the public sector) the conflicting duties of electronic monitoring to deter harassment without infringing employees’ expectation of privacy in text messages.