In our post of July 9, 2009, we discussed a company’s right to search for and use an employee’s personal email communications with her attorney exchanged through a company provided laptop computer. Stengart v. Loving Care Agency, Inc. In Stengart, the New Jersey Appellate Division decided in favor of the employee and privacy advocates in a case closely followed by the employment bar. The New Jersey Supreme Court believed that the issue was so important that it granted interlocutory leave to appeal and stayed the underlying action until it reviewed that decision.
The facts in Stengart were relatively simple. Marina Stengart was an employee of Loving Care who was provided with a laptop for company related work. The employee handbook of Loving Care alerted employees that emails were considered part of the company’s business records and were to used principally for business purposes. Athough employees were cautioned against considering such communications either private or personal, the handbook explicitedly permitted occasional personal emails.
Stengart was not a happy employee. While contemplating legal action against her employer, she used her company laptop to access her private, password-protected Yahoo mail account through the internet to communicate with her attorney. When she left the company a short time later, she turned in her laptop and thereafter filed an employed related civil action against Loving Care. In response, the company’s lawyers retained a forensic expert who recreated her laptop’s harddrive and retrieved several of the emails exchanged between Stengart and her attorney. These emails were eventually identified in the company’s discovery responses, which drew a vigorous objection by the plaintiff.
The Supreme Court was faced with the specific question of whether these emails were protected by the attorney client privilege and the broader question of under what circumstances an employer may search for and use the contents of email communications between an employee and her attorney when those communications are facilitated by the company’s electronic resources. A sticky wicket indeed.
Siding with the employee and advocates of privacy in this electronic age, the Supreme Court ruled that Stengart had a reasonable expectation of privacy under the circumstances. Although the company provided and presumably owned the laptop, she used her private, password-protected Yahoo email account –not the company server or email system– to communicate with her attorneys. In addition, the company employee handbook was ambiguous in its email policy. On the one hand, the handbook cautioned against any privacy expectation when using the internet or exchanging emails while, on the other hand, it permitted occasional personal email use. On the balance, the court found that the employee’s right to confidential communications with her attorney trumped the company’s absolute right to monitor and access all email communications assisted by company resources.
Stengart provides important guidance on the scope of an employee’s legitimate privacy expectations in the work place when electronic communications are involved. While an employer should use care in formulating a clear and well defined electronic use policy in its handbook, there are limits to a company’s legal right to search for and use an employee’s personal email exchanges no matter how what the handbook states.
If you have any questions about this post, please contact Paul Clark at firstname.lastname@example.org