The term "sexting" crept into American vernacular in the mid-2000s and burst into the culture thanks, in large part, to Anthony Weiner. Prior to the rise and fall of "Carlos Danger," the Supreme Court addressed the question of whether an employer has the right to read an employee's personal text messages on a work-issued device.
In City of Ontario v. Quon, the Supreme Court overturned a Ninth Circuit Court of Appeals Decision involving a California police officer who used a work-issued pager to send sexually explicit messages to his wife and his mistress. Quon's lawsuit against the city, his police department, and its chief argued that the search of his texts violated his Fourth Amendment rights. When Quon was issued the pager, the city did not have any text message policy in place; however, it did have an official general policy about computer, email, and Internet usage. Pursuant to an informal policy, Quon had paid an extra cost for personal usage, and the search was conducted as part of a review of pager use undertaken by the city to determine (1) whether employees were being forced to pay out of their own pockets for work-related expenses and (2) whether the city was paying for extensive personal communications. The Supreme Court ruled that under these circumstances, the search was justified: "That the search did reveal intimate details of Quon's life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters."
In 2014, four years after Quon was decided, a study from security software firm McAfee, titled "Love, Relationships, and Technology," found that more than 50 percent of adults in the U.S. send or receive sexually explicit text messages, photos, or videos on their mobile devices. Sexting was found to be most prevalent among adults 18-24 years old with 70 percent reporting they had received an explicit text message.
Can an employee be terminated for sending what is assumed to be a private email or text? Many employers monitor emails and other communication searching for key words or phrases that might indicate illegal or unethical conduct. Therefore, it is probably not reasonable to assume privacy if an employee uses their employer's time or property to send a message. However, what about communications sent from a private account on a private device and network? If that message is seen by the employer, it too may be grounds for termination when it constitutes bullying, harassment, commission of a crime, or anything that raises questions about professional ethics or the sender's capacity to perform their job.
As technology advances, the boundary between work time and personal time is getting blurred. How can employers draw a clear line with policies that inform employees what is-and is not-permitted on company-provided devices or on employee-owned devices on which work is conducted?
An employer should (1) have policies regarding its expectations of employee conduct and (2) clearly communicate its intent to monitor communication that occurs on company equipment regardless of whether the equipment is also used for employees' personal use. Employees should have reasonable expectations of privacy, but they must understand that harassment is never acceptable-not in text messages or in any other form.
An employer's social media policy should address communications that take place during work hours as well as outside them. And employers should be aware of the Stored Communications Act (SCA, codified at 18 U.S.C. Chapter 121 §§ 2701-2712), which prohibits accessing electronic communications stored by a third party without permission granted by the sender, the receiver, and some select others. The SCA may at times hamper an investigation undertaken by an employer.
Companies can more easily monitor emails than text messages. This can pose a problem for employers if sexual harassment is occurring at work via text message. When employers can show that they have taken steps to keep sexual harassment out the workplace, they may have a robust defense against a claim; however, if the employer knew or should have known about the situation and did not take appropriate action, it could be liable.
Even consensual, non-workplace "sexting" can be a problem for employers and their employees in cases of "revenge porn," a pernicious practice so widespread that some states have passed legislation to criminalize it. In these cases, a spurned ex-partner posts a sexually explicit photo or video of a former lover-often with identifying information-without the individual's permission to do so. In some cases, the sexually explicit photo or video is sent to the individual's boss and/or coworkers. Even in the absence of ensuing harassment on the job, the victim may be so significantly traumatized that their work is affected. Employers can take steps to support victims of revenge porn by (1) providing employee assistance materials, (2) taking steps with security to maintain the victim's safety in the workplace, (3) taking steps to limit ongoing fallout in the workplace, and (4) working with IT to remove the sexually explicit material.
In some instances, an employer may learn of an employee's inappropriate use of a company-issued device through a revenge porn event. That is, the sexually explicit photo was sent to an ex-lover from the workplace or from a work-issued device. In such cases, the employer may want to balance its need to enforce its internal policies with the laudable goal of protecting the revenge porn victim from further trauma, especially caused by disproportionate discipline or termination.
These are not easy problems to confront and solve. That's why preventive law-consulting an employment law expert before a crisis arises-can help employers navigate them.