Labor & Employment Law Blog

A new year often presents a suitable opportunity to review important employment policies. Although policies concerning the “acceptable use of electronic resources” were a novelty only a decade ago, they have now become so common that employers may neglect to review them from time to time to be sure they are still current. A policy written in 2005 could be out of date if it does not accommodate advances in technology and communication that were not anticipated at that time. In the world of electronic communications, changes and innovations occur with alarming speed.  Policies need to keep pace with these changes, or at least encompass the possibility of new technologies and means of communication.

A fundamental provision of an acceptable use policy will inform employees, and require them to acknowledge via signature, that there is no expectation of privacy in electronic communications made using the employer’s equipment or resources. Policies written in the bygone era when email was the sole recognized means of such communication may need to be updated to reflect new trends.

Some recent court decisions highlight the importance of a clear policy regarding the use of an employer’s electronic resources, and in particular the “no expectation of privacy” provision. In 2010, the U.S. Supreme Court upheld a public employer’s right to review the text messages sent to and from employees on employer-provided pagers.  (City of Ontario v. Quon (2010) 130 S.Ct. 2619.) Before acquiring the pagers, the City of Ontario, California announced a “Computer Usage, Internet and E–Mail Policy” that applied to all employees. Among other provisions, it specified the City “reserves the right to monitor and log all network activity including email and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.”  Although the policy did not expressly cover text messages, the City made clear to employees that it would treat text messages the same way it treated emails.

The plaintiff, Quon, had signed a statement acknowledging he had read and understood the policy.  Quon objected to the City’s review of thousands of personal text messages exchanged between Quon and another employee.  The City’s policy, and Quon’s acknowledgment of it, defeated his claim that there was an “expectation of privacy” in the messages.  By contrast, a Connecticut school district’s policy that stated “System users have a limited privacy expectation in the contents of their personal files on the District system” did give employees “a reasonable expectation of privacy in [their] emails at work.” (Brown-Criscuolo v. Wolfe (D.Conn. 2009) 601 F.Supp.2d 441, 449-450.)

A solid acceptable use policy can also support an employer’s defense to wrongful termination claims. For example, in Lioi v. New York City Dept. of Health & Mental Hygiene (S.D.N.Y. 2012) 2012 WL 6625271, the court held the employer “met its burden of demonstrating a neutral, non-discriminatory justification” for terminating an employee who breached a confidentiality agreement when she sent emails containing patient-specific identifiers from her work email to another employee’s personal Yahoo account.

Similarly, in Zeiny v. Washington Safety Management Solutions, LLC (D.S.C. 2012) 2012 WL 1098209, a religious and national origin discrimination case, the court held the employer had a legitimate, nondiscriminatory reason for terminating an employee who loaded unauthorized software programs onto his work computer, in violation of two separate policies regarding computer usage.  And in Hannah v. One Communications (W.D.N.Y. 2011) 2011 WL 5282633, the employer showed “it had a valid reason to terminate plaintiff’s employment, and plaintiff cannot establish that said reason is in reality a pretext for unlawful discrimination” where the plaintiff violated the acceptable use policy by making an excessive amount of personal telephone calls and used her workplace computer to view YouTube videos, shop for boots, and send and receive extensive personal email.

In each of these cases, the former employee’s claim of discrimination was dismissed when the employer demonstrated its legitimate, nondiscriminatory reasons for the termination.  The acceptable use policies, signed in each case by the employee who was later terminated, provided strong support for the employers’ legal defenses.

As the Supreme Court noted, “employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.”  (City of Ontario v. Quon, 130 S.Ct. at p. 2630.)  So brush the dust off that acceptable use policy of yesteryear, and be sure it is protecting you and your employment decisions to the fullest extent.