Is There Email Privacy in the Workplace?
One of our “hot button” topics is the utilization of a company computer for personal use. While we have cautioned employees not to use their employer’s equipment for private purposes, a recent New Jersey judgment puts another spin on the rule, regarding attorney-client privilege.
In Stengart v. Loving Care Agency, Inc, the New Jersey Supreme Court’s decision affirmed that Stengart “could reasonably expect that email communications with her lawyer to her personal account would remain private, and that sending and receiving them via a company laptop did not eliminate the attorney/client privilege that protected them.” The subject matter is of interest in many jurisdictions, not just New Jersey.
Looking at the details of the case, I found it very interesting that the computer was being used only as a conduit; the employee used it to access a private e-mail account. However, not being sufficiently tech-savvy, she didn’t realize the computer was saving copies in its cache.
This is like an impression being left on the bottom pages of a note pad (movie buff alert: this occurs in Hitchcock’s North by Northwest). There is one difference: you could look down and see the impression on the pad; if you’re not technically savvy, you may not even know there is a cache or even what a cache is.
According to the Employee Rights Blog, the company argued that their policy indicated that emails sent on company equipment could not be considered private or personal. But it also acknowledged that “occasional personal use of email is permitted.” The Court cited other ambiguities, including the fact that there were five versions of the policy floating around.
The Employee Rights Blog has some good suggestions: Employees: don’t use company computers for anything private. Employers: try not to be ambiguous about your company’s computer use policy.
