Many employers have written policies stating that the computers, blackberries, and other electronic devices are owned by the Company; that the Company reserves the right to review all emails, text messages, and so on that are sent on Company equipment; that employees should have no expectation of privacy or confidentiality when using these resources; and that sending inappropriate, derogatory, harassing, or sexual messages or material is grounds for discipline, including termination of employment.  The Ninth Circuit’s June 18, 2008 decision in Quon v. Arch Wireless Operating and The Ontario Police Department serves as a reminder that employers can inadvertently waive the benefits of such policies.

In Quon, the City of Ontario had contracted with Arch Wireless for text-messaging services.  The City distributed the pagers, including to the two plaintiffs who were sergeants with the Ontario Police Department.  The City had a typical "Computer Usage, Internet and E-mail Policy" that applied to all employees.

Under the City’s contract with Arch Wireless, each pager was allotted 25,000 characters, after which the City was required to pay overage charges.  The lieutenant in charge of the contract implemented an informal policy by telling employees that if they paid the overage on their assigned pager, then he would not have to audit the messages to determine whether the messages were work-related or personal.

The plaintiffs had gone over the monthly character limit a few times and had paid the City for the overages.  In time, the lieutenant let it be known that he was tired of being a bill collector with employees who exceeded the allotted number of characters on their text pagers.  The Chief of Police ordered the lieutenant to request transcripts of the pagers for auditing purposes.  That audit found that many of the plaintiffs’ messages were personal in nature and were often sexually explicit.

The plaintiffs sued both Arch Wireless and The City of Ontario, as well as some individual defendants.  In pertinent part, the Court held that in light of the lieutenant’s informal policy that he would not audit a pager if the user paid the overage charges, the plaintiffs had a reasonable expectation of privacy in their text messages as a matter of law – notwithstanding the City’s written policies to the contrary.

This case cautions employers that it is possible to lose the benefits of their written computer and email policies.  Employers wishing to maintain their rights should ensure that managers and supervisors do not inadvertently undermine the policies by adopting inconsistent practices or making inconsistent promises to employees.