A public sector labor client approached us recently when a member was ordered by his department to surrender his mobile phone for inspection of text messages.  This was his personal mobile phone, not a department-issued device, so our client wondered whether the employee had any kind of protection from such an intrusion into his private communications.  While the answer as to whether a particular search is legitimate is (like many things involving the law) “it depends,” the general principle is that privacy protections do apply in this type of situation involving a public employer.  The question then becomes whether the employer’s reason for the search justifies the intrusion and whether the intrusion is excessive under the circumstances.

As noted by the United States Supreme Court in O’Connor v. Ortega (1987) 480 U.S. 709, “[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.”  In that case, the Supreme Court created a two-part test to determine whether a public entity may undertake a warrantless search the personal belongings of its employees:

(1) the search must be justified at the time of it is conducted, meaning that “there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a non-investigatory work-related purpose such as to retrieve a needed file[;]” and

(2) the search, as carried out, must be reasonably related in scope to the circumstances that justified it in the first place, meaning that “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of…the nature of the” alleged misconduct or other subject matter of the investigation.

Applying this test in another case, City of Ontario v. Quon (2010) 560 U.S. 746, the Supreme Court found that a warrantless search of text messages in an employer-provided, employer-paid device was permitted based primarily on the following factors:

• The employee was told that the device was subject to search.
• The reason for the search was to determine, in light of the officer incurring overage charges (from a high volume of messaging), whether the City’s contract with the wireless provided allowed adequate usage for work-related communications—i.e., it was purely work-related with no intent to delve into personal matters.
• Critically, the Court specifically noted that “the OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal email account or pager, or a wiretap of his home phone line would have been.”
• The Court also explicitly recognized that “under the circumstances a reasonable employer would not expect that such a review [of an employer-provided device] would intrude on” protected matters of a purely personal and private nature.

In light of these factors, all of which flow from the fact that it was an employer-provided, employer-paid device, the Supreme Court ruled that the employer’s search was lawful. The Court specifically found that the search in that case was reasonable because it did not involve the employee’s private equipment or device, a fact that strongly suggests it would have been unlawful if it had.

Based on O’Connor and Quon, we believe the search of a public employee’s personal text messages on his personal mobile phone may violate his Constitutional rights.  While the answer in a given situation will vary, depending on the circumstance, the following considerations are critical:

• A public employee retains Fourth Amendment rights, and other constitutional protections, in spite of being employed by as a public entity.
• The employer must have reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct.
• The unlimited search and review of text messages would be excessively under most circumstances, particularly if there are less intrusive ways to identify the messages the employer is concerned with.
• In regard to personal mobile phones, as opposed to employer-provided devices, the expectation of privacy is at its fullest.
• Unlike the search of an employer-provided device, one would necessarily expect the search of a private phone to reveal private communications.

Comment: We believe that a public employer would need a very strong and direct justification to require the surrender and inspection of a personal mobile phone.  Thus, if you or one of your members is ordered to submit a personal mobile phone for inspection, consider whether such a search would infringe on his/her Constitutional rights. Based on the foregoing analysis, our client was able to convince the employer to back off of its inspection demand.

If you have any questions, please contact Jonathan Yank at jonathan@majlabor.com.