Employment Law Report

Supreme Court Allows Search of Employer-Issued Pager

By Kim Koratsky

On June 17, 2010, the U.S. Supreme Court issued its opinion in City of Ontario, Calif. v. Quon, No. 08-1332, slip op., 560 U.S. ___ (June 17, 2010), upholding the municipal employer’s right to search an employee’s text messages on a city-issued pager.  In this case, SWAT Sgt. Jeff Quon used the pager issued to him by the Ontario, California Police Department, to send and receive messages that, in the trial judge’s words, were “to say the least, sexually explicit in nature.”  Police officials discovered many personal messages, including some that were sexually explicit, when it decided to audit text message usage to see whether SWAT team officers were using their pagers too often for personal reasons.  The city had a policy making clear that it had the right to monitor communications on computers, e-mail and the Internet, but one police official informally told officers that no one would audit their text messages so long as the officers paid for the charges above a monthly allowance.  After the audit disclosed the sexually explicit messages, Sergeant Quon, a second officer, the sergeant’s wife and mistress sued the department saying their Fourth Amendment Rights were violated.

Writing on behalf of a unanimous Court, Justice Anthony Kennedy said that Quon could not assume “that his messages were in all circumstances immune from scrutiny.”  Justice Kennedy specifically warned that this decision was narrow and closely tied to the facts, and went on to say that the court was uncomfortable fashioning comprehensive legal rules, given the pace of technological and cultural change.  Saying that, so long as employers have a “legitimate work-related purpose” for inspecting such communications, however, Justice Kennedy wrote that the Police Department’s  audit of pager messages on a city-issued device “was not nearly as intrusive as a search of his personal e-mail account or pager, or wiretap of his home phone line would have been.”  Justice Kennedy went on to say that, based on the general affordability of cell phones and similar devices, employees who want to avoid having such communications revealed “can purchase and pay for their own.”