The Labor & Employment Law Blog Focusing on legal trends in data security, cloud computing, data privacy, and anything E

Ninth Circuit Sides with Employee on Texting Issue: Quan v. Arch Wireless

Posted in Employee Privacy Rights

Quan v. Arch Wireless involved the use of employer-provided pagers in the Ontario Police Department in California. The official city policy stated that the department had the right to review messages officers sent using the pagers. The policy clearly stated that there was no privacy for any electronic messages at work, including email and text messages. Supervisors, however, told employees that if they paid overage charges themselves, the messages would not be audited. Quan, who is a member of the SWAT team, sent many sexually explicit text messages to his wife during work hours. He also neglected to pay the overage charges. The police department eventually read the text messages in connection with an audit for text message overage charges. The text messages ultimately lead to disciplinary action against Quan. Quan and other employees sued the department for violation of their constitutional right to privacy. At trial, the department relied upon its formal computer use policies and procedures, which Quan had signed a written acceptance, to justify its actions. Quan argued that his supervisor had implemented a different informal policy causing him to have a reasonable expectation that his text messages would not be reviewed. The Ninth Circuit held that this “operational reality” trumped the “formal written policies.” Thus, employer’s review of the employee’s text messages violated the employee’s privacy rights, and that of his wife.