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.

The case of Fazio v. Temporary Excellence, Inc. is chock

full 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.

This article was originally published on Eric B. Meyer's blog, The Employer Handbook

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