Employee Has Right of Privacy as to E-mails to Lawyer

By Ted Olsen

For years, we have advised employers to adopt written policies expressly declaring that employees have no right of privacy as to their use of employer-provided computer equipment and systems.  By making such declarations, in various iterations, employees should have no expectation of privacy in the content of, for example, their personal e-mail messages transmitted from employer equipment.  Such policy statements should cover employees' use of personal e-mail accounts from their employers' computers.  However, the New Jersey Supreme Court has ruled that an employee using an employer-provided laptop computer to exchange messages with her attorney, through a password-protected personal Yahoo e-mail account, had a reasonable expectation of privacy as to such privileged communications.  Stengart v. Loving Care Agency Inc., 990 A.2d 650 (N.J. 2010).

In the case, after Ms. Stengart, a health care service executive, left the company, she brought claims of employment discrimination.  As is common in litigation, the employer retrieved her e-mail messages from the laptop computer's hard drive and discovered her messages to and from her lawyer.  The company's attorneys reviewed these messages and did not return them to Ms. Stengart or her counsel.

Loving Care had a written policy against employees' personal use of company-provided computers, but the policy said nothing about using company-provided computers for the use of personal e-mail accounts.  More importantly, however, the New Jersey Supreme Court held that - even if the policy had been clearer on the subject - it would not have justified the employer's intrusion into Ms. Stengart's private communications with her attorney.

Not only were the actions of the employer and its lawyers an invasion of privacy, the attorneys were found to have violated state ethics rules by reading the e-mails and not returning them to Ms. Stengart's lawyer.

If an employer's policy does not expressly cover employees' use of company-owned computer equipment for accessing and using personal e-mail accounts, the policy should be modified.  Also, if an employee's privileged communications with their attorneys (or doctors) are discovered, the employer should confer with its attorneys before examining the communications, as they may be protected. 

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

©2010 Sherman & Howard L.L.C.                                                        May 10, 2010