For 2010, a good New Year’s resolution from an employment law perspective would be to review your existing personnel policies, paying particular attention to your electronic usage policy.

Employers may assume that anything sent or viewed by their employees on a work-owned or issued computer or cell phone can be reviewed by the employer. However, courts around the country are placing limits on what employers can lawfully access, even on an employer-owned computer. And the critical piece in analyzing these cases is usually the employers’ electronic usage policy—or lack thereof.

There is a definite upward trend in litigation over this issue, because many companies are routinely accessing employee hard drives and obtaining information that is harmful to the employee. Such information often results in disciplinary action against an employee, or is used against a former employee who has sued the employer. When deciding whether the employer had the right to access and/or use employee information on work computers, software systems or cell phones, courts focus on the employer’s electronic usage policy. The critical issue is whether the employee had a reasonable basis for believing that information sent on the employer’s computer or cell phone—even if sent from an employee’s private, password-protected email account (like gmail.com or hotmail.com)—would be subject to review by the employer. However, even the strongest language in an electronic usage policy may not be sufficient if a supervisor or manager tells employees that in actual practice, the company will not review their electronic communications.

These difficult issues will be clarified next year, because the Supreme Court has just agreed to hear a case on this subject. The case before the Supreme Court involves an electronic usage policy that prohibited personal use of the employer’s computer and limited the number of text messages that could be sent per month over the company-issued pagers. In practice, the supervisor told employees that the employer wouldn’t review their messages as long as employees who exceeded the permitted text message amount reimbursed the overage charges. When one employee repeatedly exceeded the permissible texting amounts, the supervisor obtained copies of the messages from the cellular provider and reviewed them to see if they were work-related. The employer discovered many of the text messages were sexual in nature and had been sent to fellow employees. The employee was fired, and sued his employer for invasion of privacy. One of the questions the Supreme Court will consider is whether the employee had a legitimate expectation of privacy in the content of his text messages.

The Supreme Court’s decision will provide more information about best practices for electronic usage policies. Until that time, we recommend adopting a very explicit and strict policy in which it is clear to employees that anything transmitted over their work computers or cell phones is subject to being accessed by the employer, and that no supervisor or manager has authority or ability to vary the electronic usage policy.