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
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
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