E-mail in the Work Place: Big Brother is Watching
We’vecautioned about e-mail before. The New Jersey Employment Law Blog recently posted an interesting court decision that involved a number of issues, among them whether the attorney-client privilege trumps employer policies.
In the case, Stengart v. Loving Care Agency, Inc., an employee used a company issued laptop to send an email to her attorney through a personal, web-based email account. Could the employer access and review those communications if they’re found on the computer's hard drive? In broader terms, does a company's electronic communications policy trump the attorney-client privilege? In this particular case, no -- but it’s a close call.
We usually would not cover a New Jersey decision because it is not legal precedent for New York and Connecticut. And there is still another level of appeal available to the litigants.
However, what's really interesting is that the e-mails were on a web-based, password protected account. But, to quote the Court’s description of what happened:
"After plaintiff filed suit, the company extracted and created a forensic image of the hard drive from plaintiff's computer."
Isn’t technology great?
We liked two “lessons” articulated by Frank Steinberg of the NJLB, so we quote:
1. For everyone: despite the ruling of this case, never use company-owned computer equipment for any personal communication that you wish to remain confidential. Just don't. Period.
2. For companies: review your electronic communication policy right away. If there are ambiguities in it, clarify them. Courts are going to look not at your intent, but at the reasonable expectations of your employees based upon a variety of plausible readings of the policy.
Attorney Joe Wilson blogged that in a New York case, an appellate court found that "a 'no personal use' policy combined with a policy allowing for employer monitoring and the employee's knowledge of these two policies diminishes any expectation of privacy." The court held that the emails were not protected, and were properly discoverable in litigation.
And what about the issue of the increasing number of telecommuters? How much privacy can one expect on a computer used for both personal and business purposes?
I'm sure we'll be hearing about many more cases, in many more jurisdictions.
Image: Laptop; courtesy of Wikimedia Commons and Jon Sullivan
