|2011 started off with an appellate opinion on a hot legal issue: Whether an employee, in subsequent litigation with their employer, has a right of privacy in personal emails the employee sends (or receives) using their employer’s computer and network. The answer is no – the employee has no right of privacy – if the employer provides proper notice and documentation.|
In Holmes vs. Petrovich Development Company, the employee, Ms. Holmes, emailed an outside attorney, using her workplace computer and network, regarding suing her employer for pregnancy discrimination. In the ensuing litigation between Ms. Holmes and her employer, the issue arose whether the email between Ms. Holmes and her attorney was protected by the attorney-client privilege.
Had Ms. Holmes sent the email from her home computer, the answer unquestionably would have been yes. However, instead she used the workplace computer and network after: “(1) she had been told of the company’s policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had been warned that the company would monitor its computers for compliance with this company policy and thus might ‘inspect all files and messages . . . at any time,’ and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages ‘have no right of privacy with respect to that information or message.'”
Given these circumstances, the court observed:
“e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him.”
Consequently, the otherwise attorney-client privileged communication between Ms. Holmes and her attorney was not confidential, and therefore not privileged. This case involved litigation between employee and employer and an email between the employee and her attorney. But the case’s importance goes beyond that limited scenario. For example, an employee’s email may be derogatory about a third party who later sues. The employer would want to be able to distance itself from that email. Or the employee is just using their computer to waste time. The employer would want to be able to discover that without risking an action for invasion of privacy. The lesson for employees is don’t use the workplace computers and network for private communications. But what was the lesson for employers? 1. Put the policy in writing. The policy was in an employee handbook.2. State the policy clearly. Here it was.3. Prove the employee was given the policy. Ms. Holmes had signed a writing stating that she had received and read the handbook.4. Don’t make statements or engage in conduct contradictory to the policy. Otherwise, the employee may claim that he or she reasonably thought the employer didn’t really “mean it.” Another case where documentation makes the difference.
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