2 Txt or Not 2 Txt

About a month ago, I gave up my private practice to accept a position as in-house counsel. It posed an interesting challenge, both logistically and professionally. Logistically in the sense that I now had an office full of furniture, files, equipment and knick-knacks that had to be either dispersed or stored, and professionally in that my new employer’s industry (mining services) was almost completely foreign to me. 

It turns out that both the logistic and professional challenges are proving a bit easier to manage than I had initially thought (which is certainly a relief). However, some new issues are arising in terms of drafting policies that cover the many legal issues facing a publicly-traded, multi-national corporation. Some of those issues are more banal than others, and it helps to get occasional direction from higher courts as to the direction the law is (or will be) taking.

Our Canadian Courts have their share of cases involving the workplace interfacing of employees and technology. Occasionally, however, our American neighbours take the lead in addressing certain issues.

Case in point: on June 17th, the United States Supreme Court (in the case of City of Ontario v. Quon), the court determined that the city of Ontario, California, did not violate the Fourth Amendment (search and seizure) rights of one of its police officers when it went through the contents of his cell phone’s text messages. The Court attempted to limit its ruling because of what it perceived to be the ever-quickening pace of the evolution of technology.

I’ve read that this is the first time the Supreme Court has addressed a public employee’s expectation of privacy in the workplace as it relates to text messaging. The City of Ontario had policies in place dealing with employee communications using city resources (in this case, a two-way alpha-numeric pager). While text messages were not specifically dealt with in the policy, the officers were told verbally that they had no “expectation of privacy” when using city resources, as the “pages” were considered by the City to be the same as e-mails, and therefore they could be the subject of an audit. They were also told that personal messages would be permitted, so long as any cost overruns were covered by the employee.

It turns out that Mr. Quon made an “excessive” number of messages on a number of occasions. The police department decided to conduct an audit of Mr. Quon’s messages to determine whether the character limit of the City’s subscription plan was insufficient for the City’s needs, given the frequent over-limit charges.

When the City conducted its audit, it found that Mr. Quon sent 456 messages during work hours in one month, of which no more than 57 were work related. He also sent 80 messages during one single day at work; and on an average workday, he sent or received 28 messages, of which only 3 were apparently related to police business.

Well, it also turns out that Mr. Quon was having an affair with a co-worker. Mr. Quon was married at the time.

Arriving at the issue at hand, the question the Court had to address was whether the City’s (initially innocuous) audit constituted a violation of Mr. Quon’s expectation of privacy. The Supreme Court determined that it must proceed with great care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. It reasoned that “[r]apid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper [behaviour]. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.”

So what should a prudent Canadian employer do?

Section 8 of our Charter of Rights and Freedoms doesn’t have the same rigidity as the US Fourth Amendment. In any event, its application is limited to governments, and not private employers. Notwithstanding that (pardon the obscure constitutionally-related pun), employers generally have privacy legislation issues with which they are required to deal.

A prudent employer would have a clear policy on what is – and, more importantly, what is not – permitted while using company resources. Sending work-related text messages and e-mails to co-workers should obviously be acceptable. Setting clear guidelines as to how many “personal” e-mails could be considered acceptable could be a start, but would be a very fine line to have to draw.

A more well-rounded approach might be setting timelines and content rules for what can be sent, browsed or forwarded on company technology resources (i.e., limiting personal e-mails and browsing to lunch hours, and restricting the content to be browsed). 

A good, solid warning system should also be spelled out to employees. Verbal warnings, followed by written warnings, followed by dismissals for cause always make for a more solid case to defend when facing a judge who may – or may not – be familiar with all of the new, creative technological means with which one can avoid work.

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