This article examines what privacy rights employees have in the workplace. Specifically, it concerns cell phones and text messages. Can your employer view your text messages? What about personal messages on your personal cell phone? What about personal text messages on a company phone? Can your employer view those? What about work text messages on your personal phone?
There are a lot of horror stories of employers invading the privacy of employees by accessing their cell phones and viewing their text messages. Can they do this? What does California law say about this? The relevant law at play here is Penal Code § 632.7.
Branigan Robertson is a California employment lawyer who focuses his practice on sexual harassment, privacy issues, and wrongful termination.
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Personal Cell Phone vs. Company Cell Phone
First, there must be a distinction between a company issued cell phone and a private cell phone. Can an employer view your text messages on your personal cell phone? The answer is no. The answer can be found in the CA Penal Code section on Invasion of Privacy:
632.7. (a) Every person who, without the consent of all parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between two cellular radio telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a cordless telephone and a landline telephone, or a cordless telephone and a cellular radio telephone, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.
… (3) “Communication” includes, but is not limited to, communications transmitted by voice, data, or image, including facsimile.
This statute obviously prohibits a company from viewing private text messages on a private phone. A complementary statute (Penal Code 637.2) gives employees a private right of action against an employer who fires them for personal text messages on a personal cell phone.
What about work related text messages on your personal cell phone?
Same answer. Your employer would not have a right, absent a subpoena, to access your work text messages on your personal cell phone. But that is not an absolute answer. There are several exceptions:
- If you are involved in a lawsuit and you are served with proper discovery, your employer would likely get access.
- If you steal company intellectual property, the employer could probably serve you with a subpoena in relation to a lawsuit.
- If you were texting with another person, and that person shows the text messages to your employer, you would be out of luck.
Do Employees Have Privacy Rights on Company Phones?
What about a personal text message on a company cell phone? Unfortunately, the United States Supreme Court held that a company may view personal text messages on a company phone. It made this landmark decision in City of Ontario v. Quon in 2010.
Even though Sgt. Jeff Quon of Ontario, Calif., had some expectation of privacy in his messages, the court said, the police department’s review — which turned up sexually explicit messages to his wife and his mistress — was justified. Even though the department told him and his co-workers that they should not expect privacy when using their pagers, they were also told that personal use would be tolerated to a certain degree.
Therefore, if you want to keep information private, you should not be sending personal text messages on a company phone!