Employees and E-Mail Privacy Rights

Marina Stengart, while employed by Loving Care Agency Inc., a home health care provider, was given a company laptop to use for work-related projects. Loving Care’s electronic communication policy provided it could review, audit and access all matters on its computers, including e-mail messages.

Stengart used the company laptop to communicate with her attorney about work-related concerns but used her personal e-mail account to do so. Unknown to her, Loving Care had browser software that copied all those e-mails.

After Stengart resigned in January 2008, she sued Loving Care for employment discrimination and wrongful termination. Loving Care hired computer experts to image the hard drive from Stengart’s laptop, read Stengart’s e-mails that she exchanged with her lawyer, and used information in those e-mails to defend against her lawsuit.

Claiming that Stengart had a reasonable expectation of privacy in her communications with her lawyer and that the e-mails were attorney-client privileged, Stengart’s attorney demanded return of the e-mails.

The New Jersey Supreme Court agreed, and held that the company’s lawyers had no right to read the messages between Stengart and her lawyer and violated state rules of professional conduct in doing so. In response to Loving Care’s claim that its electronic communication policy permitted its access, the court found that the policy did not address whether the company could review personal Web-based e-mail accounts.

“The policy does not address personal accounts at all. … [E]mployees do not have express notice that messages … are subject to monitoring if company equipment is used.”

Moreover, even a clearly written company manual could never permit an employer to review an employee’s attorney-client communications. Stengart v. Loving Care Agency, Inc. N.J. No. A-16-09 (3/30/10).

Impact: Employers are advised to review their electronic communications policies and ensure that such policies clearly communicate the employer’s rules and expectations involving company e-mail and personal password-protected e-mail.

Workforce Management, June 2010, p. 10 — Subscribe Now!

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.