The Court also highlighted a key distinction between corporate e-mail and text messages sent by cell phone, i.e., such text messages typically are transmitted through the cell phone provider’s server, rather than an employer-owned server. In Quon, this distinction was important because the department’s e-mail policy focused on e-mail sent through the department’s server and did not mention text messages. However, the Court emphasized that the department had informed SWAT team members, when issuing pagers to them, that the e-mail policy would be applied to text messages transmitted through the service provider. Similarly, private employers should ensure that their electronic resources policy is not limited to e-mail or to communications transmitted through the company’s e-mail server.

Although not deciding the issue of Quon’s privacy rights, the Court did give some weight in passing to Quon’s contention that a management-level police official had created an expectation of privacy for Quon by telling him that the official would not audit Quon’s text messages if Quon paid any required overage charges. Private employers should take care through policy language and training to avoid a situation where an employee could allege that a management-level employee countermanded corporate policy aimed at defeating employees’ privacy expectations in their electronic communications.

The Court’s holding — that Quon’s claim failed because the department’s search was legitimate and reasonable — demonstrates that private employers can substantially reduce their potential exposure on privacy-based claims by acting reasonably when searching and reviewing employees’ electronic communications. In Quon, for example, the department initiated its investigation for the legitimate purpose of determining whether the department’s character restrictions on text messages were too low and, therefore, forced SWAT team members to pay overage charges for work-related texts. In addition, the department reviewed only a relevant sampling of Quon’s texts, and the internal investigator who conducted the review redacted all messages sent or received by Quon during non-working hours. The department’s precautions demonstrate that, by conducting an investigation to accomplish a legitimate business purpose and in a manner that is not excessive, private employers can defeat claims based upon a review of an employee’s electronic communications, even if a court were to find that the employee had a reasonable expectation of privacy in those communications.

While private employers can take heart from Quon, they also should take heed of the following statement by the Court:

[The department’s] audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been.”

As employees increasingly access personal e-mail accounts using employer-issued equipment and rely more heavily on personal smart phones to conduct company business, the privacy issues confronted by private employers (and the courts) will become only more complex. Here again, a well crafted and broadly distributed policy that puts employees on notice of how and when the employer will access these communications can go a long way towards strengthening the employer’s hand in litigation. At the same time, employers should beware that, as reflected by a recent decision of the New Jersey Supreme Court, even the most comprehensive electronic resources policy may not always win the day.