News Flash: Court Rules Employer Violated Employee Privacy When Retrieving Emails After Discharge
Mar 2010
(March 30, 2010) In a closely watched case by workplace privacy advocates and business groups, the Supreme Court of New Jersey decided today that an employer violated an employee’s reasonable expectation of privacy when it retrieved emails sent to and from her attorney using a password protected Yahoo account from the company laptop.
Marina Stengart claimed she was subject to harassment and discrimination by her employer, Loving Care Agency. Knowing that she would either quit or would be fired, she exchanged emails with her attorney using the her company laptop. She was careful to transact her correspondence using her personal Yahoo account, which she accessed through an Internet site. Unbeknownst to Stengart, however, browser software that was installed on the laptop had made a copy of the webpage and saved the emails on the computer’s hard drive in a “cache” folder of temporary files.
Loving Care had a policy putting employees on notice that while they could use “electronic communications systems” for personal use, there was no expectation of privacy and that the company would monitor all communications.
When Stengart did leave, Loving Care’s attorneys created a forensic image of the laptop’s hard drive. Among the items retrieved were the files containing emails that Stengart had exchanged with her lawyer. The trial court ruled that she had no right to privacy in the emails, an appellate court disagreed.
“Under the particular circumstances presented, how should a court evaluate whether Stengart had a reasonable expectation of privacy in the emails she exchanged with her attorney?” the Supreme Court asked.
The Employers Association of New Jersey (EANJ) submitted briefs to the court, stating that an employer’s electronic communications policy provides an “important self-policing function which benefits employees by relieving the employer of the Hobson’s Choice of either banning occasional personal use altogether or acting as Big Brother.” It argued that “a total ban of personal use of … electronic communications systems … will create a lose-lose situation because employees will also suffer the loss of convenience and courtesy which they have grown to expect. In today’s workplace, employees’ occasional personal use of the Internet is a given.”
While the court shared EANJ’s concerns, stating that it did not endorse “a zero-tolerance policy” it ruled nevertheless that Stengart’s privacy in her attorney-client emails trumped Loving Care’s policy.
According to John Sarno, president of EANJ and a lawyer who submitted the employers’ brief, the holding could be narrowly read to apply only to attorney-client emails accessed on personal, password-protected accounts.”
However, based on his reading, “it is clear that most company electronic communications polices will need revision in order to conform with this decision,” he says.
For more information, please contact John Sarno.
