I don't like people playin' on mah phone!

For the last time, people: don't use the cell phone given to you by your employer to text your mistress. (http://www.msnbc.msn.com/id/36602035/ns/business-careers/page/2/) This ought to be a non-issue, but, for some reason, employees still expect to use employer assets inappropriately and without repercussions. Here's a hint: use your own phone.

Here's a synopsis of the facts of the article. An officer is given a pager by his employer, the police department. Said officer uses this pager to send sexually-explicit messages to his wife and mistress. The police department checks the pager, finds the officer's messages, and fires him for using said pager in such a fashion. Officer (and wife and mistress) sues the police department for wrongful termination and intrusion into privacy, arguing that he had a reasonable expectation of privacy because he paid for overusage charges on the pager. Ninth Circuit finds in favor of the officer.

Some quick questions to clarify my own opinion. Is the pager property of the police department? Yes. Was the pager intended to be used primarily for work? Yes. Should the fact that the officer paid for overusage mean that he had a reasonable expectation of privacy? Absolutely not.

Suppose the officer had failed to show up for a required meeting at the precinct after his superior paged him via the pager with regard to said meeting. There would be no question that the superior would be entitled to take back the pager and search it (which belongs to the police department), and check to make sure the message got through, before adverse employment action could be taken. In this case, the police department checked pagers because it had intended to crack down on "excessive texting" at the department. That seems like a pretty reasonable explanation for investigating what all of the employees of the police department were doing with their pagers.

Employers should have the right to inspect their own assets when conducting reasonable investigations into the use of said assets. Here, the employer was checking on a pervasive problem: the use of pagers for excessive, private texting. They happened upon some sordidness that involved employees (the officer, his wife, and his mistress, were all employees of the police department). The Ninth Circuit, however, believed that because the employee paid for overusage, that this created a reasonable expectation of privacy that overrode the employer's reasonable inspection of its own assets. (http://www.ca9.uscourts.gov/datastore/opinions/2008/06/18/0755282.pdf) This is despite the fact that the employer had a clearly defined policy with regard to the use of employer assets, which expressly stated that "[u]sers should have no expectation of privacy or confidentiality when using these resources."

It should be pointed out that the only reason that this is an issue is because the employer in this case is a public body. Had it been a private employer, there would be no Fourth Amendment issue. This decision, if affirmed, would create another substantial difference between public and private employers, something which prevents public agencies and departments from acting effectively as employers.

But really? I'm not sure why the dingbat officer in this case should be rewarded for his stupidity. Seriously.