The so-called “privacy” of employee emails

Humblebrag alert.

Reporters call me all the time. It’s a wonder that I can get any work done.

Why, just last week, I was speaking to a reporter about an action recently initiated by current and former employees of the FDA, alleging that the agency unlawfully monitored their private emails. During our discussion, I mentioned another case — this one called Stengart v. Loving Care Agency — in which the NJ Supreme Court held that an employee who emails her attorney from a company computer may have a reasonable expectation of privacy in those emails provided that the employee uses a password-protected web-based email account.

Ah, serendipity! The following day, I read about another case decided last week in which the NJ Superior Court reaffirmed that many employee emails are not private. More on this case and a best practice for employers after the jump…

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The case of Fazio v. Temporary Excellence, Inc. is chockfull of tortured facts involving Vegas bachelor parties, screwy real-estate deals, and 2nd-degree extortion. Pish-posh. Let’s focus on the part of the opinion that matters here:

The Court [in Stengart v. Loving Care Agency, Inc.] concluded that the plaintiff “could reasonably expect that e-mails she exchanged with her attorney on her personal, password-protected, web-based e-mail account, accessed on a company laptop, would remain private” and, consequently, that the privilege protected those e-mail messages.

It is true that TEI lacked an e-mail policy. However, unlike the employee in Stengart, plaintiff took no steps whatsoever to shield the e-mails from his employer. Instead, he repeatedly sought legal advice about the negotiation for the purchase of TEI using his employer’s own e-mail system on its own computer equipment, and did not password-protect those communications. Under these circumstances, he had no reasonable subjective expectation of privacy. Accordingly, the court ruled correctly with respect to the e-mails.

So Stengart proves to be the exception and not the rule. The lesson for employers: Make sure to have a computer-use policy confirming that employees should have no reasonable expectation of privacy when using company computers or email. Notwithstanding, however, recognize that in some states — like NJ — employees will have a reasonable expectation of privacy in emails sent and received on web-based personal email accounts.

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