This week, the Ninth Circuit Court of Appeals reminded employers that employees may have a reasonable expectation of privacy for text messages they send on employer-provided pagers. Consequently, employers that provide employees with text messaging services on business cell phones, pagers, or PDAs, need to think twice before reviewing the messages without consent.

Background. A city police department provided pagers for its officers that had text-messaging capabilities. The city, however, had no express text-messaging or pager usage policy. Instead, the city relied on its employee internet/computer usage policy that warned employees that they should not have an expectation of privacy when using the city-provided resources.

One officer consistently sent more text messages than the city’s subscription plan allowed. In response, the city adopted an informal practice of allowing the officer to pay for any overage each month. Additionally, the city administrator told the officer that if the officer paid the overage, the administrator would not have to audit the text messages to determine how many messages were non-work related.

Eventually, the city grew tired of the constant overages and requested the transcripts of the officer’s text messages. The messages were personal in nature and sexually explicit. Once released, the officer filed a lawsuit claiming the city violated his privacy rights.

The Court’s Ruling. The court ruled that the city violated the employee’s reasonable expectation of privacy by reviewing his text messages without his consent. Crucial to the court’s ruling was the city’s informal policy and practice of not auditing an officer’s text messages if the officer paid the overage fee. The court concluded that the city’s informal policy gave the officer a reasonable expectation of privacy to the messages he sent.

What this means for your business. Without an express text-messaging policy, employers run the risk of violating an employee’s right to privacy if they review the employee’s text messages without consent. A general computer/internet policy that reserves the employer’s right to monitor an employee’s usage will not provide a defense if the employer has an informal policy or actual practice that creates a reasonable expectation of privacy. Employers are wise to have their computer/internet policies revised to incorporate text messaging and to have their informal policies and practices reviewed as part of an employment audit.