Firm paid for text messages; can it read them?
December 17, 2009 by Sam NarisiPosted in: Communication, In this week's e-newsletter, Latest News & Views, cell phone
If employees send text messages on the company’s dime, the company should be able to monitor them, right? Maybe not, according to recent court decisions.
An employer gave cell phones to a group of employees so they could communicate via text messages. The contract with the wireless provider said the company would be charged an overage fee if any phone sent more than a certain number of words in a given month. Employees had to reimburse the company for those charges.
After one employee went over his limit four times, the company obtained copies of his messages from the wireless provider. The transcripts revealed the employee was sending a lot of personal messages — in fact, many of them were sexually explicit.
The employee was disciplined, but sued, claiming his privacy was violated when the vendor provided — and the company read — his personal messages.
A jury ruled in favor of the company, before an appeals court reversed the decision. The reason: The messages weren’t the company’s property because they were stored by a third-party vendor (unlike company e-mail, which is often held on the company’s own network).
Now, the Supreme Court has agreed to hear the case. We’ll keep you posted on the outcome.
Cite: Quon v. Arch Wireless
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Tags: privacy, text messages, X e-mail
December 22nd, 2009 at 2:44 pm
I think the determining factor in my opinion is this: Did the employee have a 1st-party contract with the wireless vendor? If so, then the wireless company clearly exceeded its authority based on the 1st-party contract. If the phone and service was provided by the company, meaning: the company maintains the contract AND pays the bill directly, then it’s silly to even discuss the possibility of 1st-party obligations, because they don’t exist. All contractual obligations are specified in the company’s wireless contract.
Further, this has serious implications for cloud-based e-mail, and e-mail archiving. One of the biggest e-mail services out there right now is 3rd-party e-mail archiving to comply with FRCP discovery requirements. So in the case of cloud-based e-mail, would I as an individual, have the same recourse against Google? How about in a situation where my archived e-mail, stored by a 3rd-party, is used in an internal investigation leading to my discipline or dismissal?
The courts have already established a clear precedant, and I’m surprised that the precedant is being challenged.
One possible defense would be to ammend the employment agreement and employee handbook, stating that the company has the explicit right and consent of the employee to monitor all electronic communications and transactions, and that both a record as well as the content of such communications and transactions may be stored, monitored, and reviewed for all communication resources owned, managed, or provided by the company.
I see this as yet another case of entitlement gone horribly wrong, and now we all have to react to the outcome.
December 29th, 2009 at 12:29 pm
I think if the company is charging the employee for the overage it shouldn’t matter what he is sending, just how much he went over. It is no different than the company reimbursing the employee for a personal Cell phone plan they use for business. Also, they are getting billed for the overage not the content. I think they over stepped their bounds a little on this one. I think they would have the right to see what numbers the employee was sending to, and question why there were so many to certain non business related numbers, but that is the extent of their right to pry.
If it is such a concern that they are going over the usage and they want to know why, I agree with Bob, amend or set up an employee agreement in the company hannd book or something to that affect. It takes all doubt out of the picture on who has what right.