Employees May Have a Privacy Interest in Emails Sent from Employer-Provided Computers

Matthew S. Veech

April 28, 2010

Since the use of email and the internet have become a predominant method of communication, employers have established written policies governing their employees’ use of email and access to the internet.

The typical practice for employers is to include a policy in the Employee Handbook that states all email and internet usage may be monitored at any time by the employer and that the employee should not expect any such usage to be private and confidential. However, in a recent ruling by the New Jersey Supreme Court, the court recognized that there are limitations to such monitoring by the employer. In Stengart v. Loving Care Agency, Inc., 2010 WL1189458 (N.J. March 30, 2010), the court stated that an employee has an expectation of privacy in email communications when corresponding with an attorney through a personal email account (i.e. not an email account provided by the employer) despite the employer’s written policy stating that email communications should not be considered private or personal to any employee. Importantly, the employer’s written policy did not clearly address whether the company would monitor internet-based email services accessed through the employer’s computer system.

The Court framed the issue succinctly: “This case presents novel questions about the extent to which an employee can expect privacy and confidentiality in personal emails with their attorney which they accessed on a computer belonging to their employer”. In conducting its analysis, the court noted that there were two principal areas involved: 1) notice provided by the employer’s policy and 2) important public policy concerns of the attorney-client privilege.

Ultimately, the court held that the employee could reasonably expect e-mail communications with their lawyer through a personal account to remain private, and that sending and receiving email via a company computer did not eliminate the attorney-client privilege that protected them. Importantly, the court stated that its decision does not mean that employers are prohibited from monitoring workplace computers. Rather, employers can adopt lawful policies, enforce those policies, and discipline employees for violations of those policies when appropriate. However, the court expressly recognized that employers have no need to read the specific contents of privileged communications to enforce a company policy.