Sexters Beware!

Attention all public employees: If you're feeling romantic, use the old-school method of "drunk dialing" to reach out to a potential mate, and avoid texting a sexy message . . . unless you want your boss to read it.

In a 9-0 decision yesterday, the U.S. Supreme Court gave public employers the right to read text messages sent by an employee on an agency-distributed phone, as long as the employer has a "work-related purpose" for the inspection. A "work-related purpose" would include a concern that pagers were being used mostly for personal messages.

The case was filed by a police sergeant against his chief in Ontario, California. The sergeant was angry that the chief read text messages from the sergeant to his girlfriend and ex-wife that were sexually explicit. The chief's inspection revealed that the sergeant sent or received 456 messages in August of 2002, but only 57 were work-related.

The ruling applies directly to more than 20 million federal, state, and local government employees, and the ruling provides some guidance for private employers as well. It appears that now an employer will feel more comfortable reviewing an employee's texts when there is a credible belief that an employee is violating workplace conduct rules.

The 2008 9th Circuit ruling held that employers must have either a warrant or the employee's permission to see cell phone text messages that are not stored by either the employer or by someone the employer pays for storage. Unlike emails that are stored typically on a company's own servers, text messages are stored most often by cell phone companies, and the employer does not pay directly for their storage. It appears the 9th Circuit relied heavily on this distinction in forming their decision. Quon v. Arch Wireless, 529 Fed3d 892 (9th Cir 2008).