EANJ Weighs In On Whether Employers Can Read Emails

Sep 2009

Before Maria Stengart quit her job, she was already making plans to sue her employer. She e-mailed her lawyer during business hours from her company-issued laptop, though she was careful enough to use her personal Web-based Yahoo e-mail account.

It was not until she filed suit for constructive discharge, that she learned company lawyers had a copy of the message, which was automatically saved on the laptop's hard drive as a temporary file.

The issue now before the New Jersey Supreme Court is whether a workplace rule converted Stengart’s e-mails with her attorney sent through her personal e-mail account, but via her employer’s computer, into the employer’s property. Finding that the policies undergirding the attorney-client privilege substantially outweighed the employer’s interest in enforcement of its policy, an appellate court rejected the employer’s claimed right to the email, likening it to rummaging through and retaining the employee’s personal property.

According to John Sarno, president of the Employers Association of New Jersey (EANJ) about three in four employers monitor employees’ electronic mail. Federal and state statutes generally prohibit an employer from monitoring employees' conversations or accessing personal communications without authorization, he said.  But exceptions exist where the employer does so to protect business interests or where the employee consents to be monitored.
 
EANJ has filed a petition to weigh in on the matter. The Supreme Court has granted EANJ “friend-of-the court” status on three previous occasions.  The employers’ group plans on discussing the nature and extent of email monitoring in the workplace and how electronic communications have changed, and continue to change, the nature of work and the workplace. 
 
A 2007 survey conducted by the American Management Association (AMA) and the ePolicy Institute indicated eighty-three percent of employers engaged in email primarily to protect business assets and to measure productivity and compliance with other policies.  According to the AMA survey and others, about one of three U.S. companies said that as a result of employee misuse of the email systems, their businesses have been negatively impacted by the exposure of sensitive or embarrassing information within the last 12 months.

Courts sometimes find an employee is protected against intrusion into private affairs if an employer's intrusion is intentional and would be highly offensive to a reasonable person.  Additionally, employees may be protected against equipment searches and surveillance by police if their expectation for privacy in the office area or computer equipment is reasonable.

Lawyers representing employees have argued that attorney-client communications, like the ones sent by Stengart, and communications between spouses that are created or accessed on the employer's computers may be further protected by public policy if an adverse party seeks them in trial discovery.

Other factors influencing the discovery of privileged communications on employer-supplied computers include whether the employer enforces a computer-monitoring policy or whether the employee took reasonable precautions to safeguard the communications.

Stengart’s former employer, Loving Care Agency, a home health-care company in Fort Lee, had an employee handbook, distributed to staff and made available on the company servers, which warned that e-mail and voicemail messages “are considered part of the company's business and client records" and "are not to be considered private or personal to any employee.”

The handbook prohibited using the e-mail system for job searches, “other employment activities outside the scope of the company business" or for "solicitation of outside business ventures.” It allowed “occasional personal use.” Stengart, the director of nursing, had worked for the company since 1994 and helped create and distribute the handbook.

The appellate court ruled that Loving Care’s interest in enforcing its electronic communications policy did not outweigh a Stengart’s interest in personal email communications that were unrelated to her employer’s legitimate business interests.  Further, the holding provided that an employer’s reliance on an electronic communications policy does not trump the attorney-client privilege.

But in other cases, New Jersey courts have upheld an employer’s right to monitor employee emails sent through the employer’s computer and electronic communications network.  But in ruling that Stengart’s employer could not monitor, read and possess the email “the appellate court created uncertainty as to whether an employer’s basic electronic communications policy is lawful by creating an impracticable and unpredictable legal burden to which employers must comply,” Sarno says.