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Employers should have a precisely worded telecommunications policy that is updated periodically and implemented consistently, observers say.
These are among the lessons learned from City of Ontario, Calif., et al. vs. Jeff Quon et al., on which the U.S. Supreme Court heard oral arguments last week.
Observers say factors in the case include an outdated, written policy forbidding personal use of city-owned telecommunications equipment that a contradictory, unwritten and informal policy permitting its use undermined.
Regardless of the high court's decision, employers should develop and update policies now to avoid these weaknesses, observers say.
Make sure “the language is neither too specific nor too general,” said Robert D. Brownstone, Mountain View, Calif.-based law and technology director at law firm Fenwick & West L.L.P.
“In other words, the goal for an employer, either in the private or public sector, should be to be fair and consistent with its employees, but not to go too far, not to make the written requirements too rigid such that they're not really going to follow them,” Mr. Brownstone said. Nor should employers make their policies too lenient, he said.
Policies should state clearly that employees should have no expectation of privacy when using company-provided electronic communications, say observers.
“Make sure that you clearly state that there is no privacy in the communications that are made over the facilities provided by the employer,” said Charles H. Kennedy, a partner with law firm Wilkinson Barker Knauer L.L.P. in Washington.
Make sure “you cover the full range of technologies and communication devices,” said Daniel I. Prywes, a partner at law firm Bryan Cave L.L.P. in Washington. “We're no longer just talking about e-mails and the Internet,” but about pagers, text messaging, Twitter and “all those other new devices that are constantly coming out,” he said. “Employers should make clear their policies apply to all company-provided networks, systems, equipment.”
Policies should be updated periodically to be sure they reflect the latest technology, observers say.
This should be “an ongoing, developing process, rather than a policy that is allowed to become stagnant over time,” said Farrah Pepper, of counsel with law firm Gibson, Dunn & Crutcher L.L.P. in New York.
It is also important that the policy be applied consistently, observers say. “Have the employee acknowledge having read (the policy) with a signature or an explicit acknowledgement,” said Mr. Kennedy. “Don't waive the policy. Don't say anything to your employees orally or otherwise which suggests that you're recognizing a privacy right in their communications, or that you aren't enforcing the policy or that you aren't serious about it.”
“Managers should be trained that they do not have the power to make exceptions and provide subordinate employees with an assurance of privacy,” Mr. Prywes said.
Christine E. Lyon, a partner with law firm Morrison & Foerster L.L.P. in Palo Alto, Calif., recommended that if there is a search of employees' private communications, it should involve as little intrusion as is possible.
“Think about the reasons you're doing the search,” because the better-tailored the search is to your purpose, “the more you can justify what you did” and “the better your position in defending it,” Ms. Lyon said.