Frankfurt Kurnit Klein & Selz: Monitoring Employee E-mails

Frankfurt Kurnit Klein & Selz: Monitoring Employee E-mails

 E-mail can be powerful evidence in a dispute, and whether employers and criminal investigators may use employee e-mail in litigation proceedings is a hot topic. A recent New York federal court decision outlined the current law in this area.

In United States v. Finazzo, 2013 U.S. Dist. LEXIS 22479 (E.D.N.Y Feb. 19, 2013) [an enhanced version of this opinion is available to lexis.com subscribers] the court reaffirmed that employees have little-to-no expectation of privacy in e-mails received through employer accounts where the employer has a sufficiently worded technology, company systems, or e-mail policy. The case is also a lesson in how personal e-mails received by employees in their work accounts can support a termination -- or even be used as evidence against employees in a criminal trial. Here's what happened.

In Finazzo, the U.S. government alleged that an Aéropostale executive named Finazzo received illegal kickbacks from an Aéropostale vendor. Aéropostale's employment policy governing the use of e-mail stated, among other things, that the employee "should have no expectation of privacy" when using the company's e-mail system; and that the company could monitor or disclose e-mails at any time. The evidence against Finazzo included an e-mail he received at work from his personal attorney - an e-mail Aéropostale discovered during an earlier, unrelated internal investigation. The e-mail contained a list of Finazzo's personal assets, and was sent to him by the attorney who was drafting his will. The list included several companies he co-owned with an Aéropostale vendor. After an unrelated investigation, Aéropostale discovered the list and fired Finazzo. Upon discovery of the alleged kickback scheme, the government also sought to use the e-mail against Finazzo.

In his federal criminal trial, Finazzo asked the court to exclude the e-mail. He argued the e-mail was protected by the "attorney-client privilege," which protects communications between a client and her attorney that are intended to be -- and are in fact -- kept confidential, for the purpose of getting or providing legal advice. But the court denied Finazzo's motion, holding that "a communication cannot be 'intended' to remain confidential ... when made through a medium that subjects it to disclosure to third parties." The court went on to hold that Finazzo had no reasonable expectation of privacy or confidentiality in any communications he made through his Aéropostale e-mail account:

"Aéropostale had a clear and long-consistent policy of limiting an employee's personal use of its systems, reserving its right to monitor an employee's usage of the system, and making abundantly clear to its employees, including Finazzo, that they had no right to privacy when using them."

Finazzo is a reminder to employers to review their current technology, company systems, and e-mail policies. If you have any questions about the Finazzo decision or other employment law matters, please contact Wendy Stryker at 212.705.4838 or wstryker@fkks.com; Gavin McElroy at 212.826.5541 or gmcelroy@fkks.com; or any other member of the Frankfurt Kurnit Executive Compensation and Employment Group. 

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