September 16, 2012

Employment News Hostile Work Environment Wrongful Termination

Can my employer read my email?

Use work email with caution. Your employer probably has a right to read and review the messages you send to your spouse, friends, family, and even your lawyers, doctors, religious counsel and other privileged communication. Apart from permissible routine screening of messages, work emails may become evidence in lawsuit regarding sexual harassment, age discrimination, whistleblowers, retaliation, or other forms of wrongful termination. As employment lawyers, we are often asked by employees whether employers reading their email is a violation of their workplace rights. Whether your employer can read your email largely depends upon the employer's computer use policy. Two recent cases have applied employers' written policies when evaluating whether an employee has a right to privacy of her email account. 

In California, an appeals court held that there was no attorney-client privilege for emails between an employee and her lawyer when the emails were sent using a work computer. In New Jersey, a court held that there was attorney-client privilege for emails between an employee and her lawyer when the emails were sent using a web-based personal email account (but only because the employer's computer use policy did not clearly cover the use of personal web-based email). 

The California case involved an employer whose computer use policy warned employees that work email was for business use only and that it was not private. The policy further stated that the employer may inspect all files or messages at any time for any reason. The court said Holmes “used her employer’s company e-mail account after being warned that it was to be used only for company business, that e-mails were not private, and that the company would randomly and periodically monitor its technology resources to ensure compliance with the policy.” The court further explained:

By using the company's computer to communicate with her lawyer, knowing the communications violated company computer policy and could be discovered by her employer due to company monitoring of e-mail usage, Holmes did not communicate “in confidence by means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.”  (Evid. Code, § 952.)  Consequently, the communications were not privileged.

The California case shows that an employer's written policy will control at all times. The case is a good reminder for employees to be familiar with their company's computer use policy and understand that employers can (and often do) review your emails. It is safe to assume that anything you send or receive through your work email account is not private.

In New Jersey, an employee used her company-issued laptop to exchange emails with her lawyer through her personal, password-protected, web-based e-mail account. Later, the employee filed an employment discrimination lawsuit against her employer. The employer searched the company's computer systems and found files revealing the contents of the email messages between the employee and her lawyer. The Supreme Court of New Jersey balanced the employer's computer use policy against the public interest of protecting attorney-client privilege.

The policy gave the employer the right to review and access "all matters on the company's media systems and services at any time." The policy also did not warn employees that the contents of such emails are stored on a hard drive and can be forensically retrieved and read by the employer. While the company was clear that email messages sent through its company email system were not private, the court found that it was not clear from the policy whether the use of personal, password-protected, web-based email accounts via company equipment was covered.

The employee took steps to protect the privacy of her emails and shield them from her employer. She used a personal, password-protected e-mail account instead of her company e-mail address and did not save the account's password on her work computer. Because of this, the court found she had a subjective expectation of privacy in messages to and from her lawyer discussing the subject of a future lawsuit.

Although the Supreme Court of New Jersey sided with the employee on this particular set of facts, the court warned employees:

Our conclusion that [the employee] had an expectation of privacy in e-mails with her lawyer does not mean that employers cannot monitor or regulate the use of workplace computers. Companies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies. And employers can enforce such policies. They may discipline employees and, when appropriate, terminate them, for violating proper workplace rules that are not inconsistent with a clear mandate of public policy.

Minnesota courts have applied a legal test that is similar to the ones used by the New Jersey and California courts discussed in this post. Even if your employer does not have a computer use or email use policy, the company probably has the legal right to read employee emails that are sent using its computer systems or network.