Employment Law Alert: Recent Developments Regarding Workplace Privacy Rights

Recent Developments Regarding Workplace Privacy Rights

New Jersey Supreme Court Upholds Privacy of Employee Personal
Emails Accessed on Work Computer

On March 30, 2010, the New Jersey Supreme Court issued a
decision in Stengart v. Loving Care Agency, Inc., 201 N.J. 300,
990 A.2d 650 (2010), holding that an employee had a reasonable
expectation of privacy in email communications she had with her
attorney through her personal, password-protected, web-based
email account using her employer’s laptop computer. Before the
employee resigned from her position with employer, the employee
used her work-issued computer to access her personal email
account on Yahoo’s website, through which she communicated
with her attorney about her situation at work. After the employee
resigned, she filed an employment discrimination lawsuit against
her former employer.

During discovery, the employer accessed the hard drive of the
employee’s company issued laptop, which included the contents
of the email communications the employee had exchanged with
her lawyer via her Yahoo account. When it was revealed that the
employer had accessed this information, the employee’s attorney
argued that the emails were protected by the attorney-client
privilege.

The trial court held that the emails were not protected because the
employee had no reasonable expectation of privacy in the emails
due to the language of the employer’s personnel policy regarding
electronic communications. The employer’s policy permitted
employees occasional personal use of its electronic systems, but
provided that the employer could at any time access and review all
information on its electronic systems. The policy also stated that
all emails and Internet communications “are not to be considered
private or personal” to employees. The trial court found that this
language was sufficient to put the employee on notice that all data
stored on the employer’s computer systems (including emails sent
from an employee’s personal account) was the employer’s property
which the employer had the right to access.

The New Jersey Appellate Division reversed the trial court, finding
that the employee had a reasonable expectation of privacy in the
emails with her attorney, in part because the employer’s policy was
ambiguous as to whether the employer had the right to retrieve the
emails and data from the employee’s personal email account.

In a unanimous ruling, the New Jersey Supreme Court agreed
with the Appellate Division in holding that under the circumstances,
the employee could reasonably expect that her email communications
with her lawyer through her personal, web-based email account
would remain private, and that sending and receiving the emails
using a company laptop did not waive or negate the attorney-client
privilege.

The court noted that the ambiguous language of the employer’s
personnel policy regarding electronic communications was insufficient
to put the employee on notice that she did not have a reasonable
expectation of privacy in the emails. Specifically, the court
found that the employer’s policy failed to “give express notice to
employees that messages exchanged on a personal, password-protected,
web-based email account are subject to monitoring if company
equipment is used,” and “failed to warn employees that the contents
of personal, web-based emails are stored on a hard drive and can be
forensically retrieved and read.”

Impact on Oregon Employers
The Stengart decision is part of a recent line of court decisions
addressing privacy and confidentiality issues that can arise
from an employee’s personal use of an employer’s electronic systems.
While this New Jersey decision is not binding on courts in Oregon,
the Stengart decision provides guidance regarding what employers
should do in order to avoid problems arising from this developing topic:

• Employers should consult with their legal counsel to ensure that their electronic systems personnel
policies clearly address what is permissible and non-permissible use of their computers, email, and other
electronic systems.

• The policies should contain explicit language outlining the employer’s right to access, monitor,
or review information or communications created, sent, received, or stored on the employer’s electronic
systems. The policies should expressly address the employer’s right to retrieve, access, or monitor the
content of both work and personal communications.

• Employers should consider adding express language to their electronic systems policies which
notify employees that the employer may access and monitor any information on the employer’s computers,
including email messages exchanged on an employee’s personal, password-protected, web based
email account, if company equipment is used by the employee to access those accounts.

• If an employer permits personal use of the employer’s electronic systems, the employer should
clearly define what constitutes “personal use” and the circumstances under which the employer may
retrieve, access, or monitor an employee’s personal or non-work communications.
With the increased and expanding use of email, text messaging and social networking sites, it is
important for employers to implement policies to define and address what is appropriate use and what is
inappropriate use by employees of employer computers, email and other electronic systems.
Employers with questions about whether their current electronic systems personnel polices are structured
to provide the best protections against employee privacy complaints should contact their legal counsel.

Portland
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Portland, OR 97204-1116
Phone: (503) 242-0000
(800) 315-4172
Fax: (503) 241-1458

Eugene
360 E. 10th Avenue
Suite 300
Eugene, OR 97401-3273
Phone: (541) 485-0220
(800) 315-4172
Fax: (541) 686-6564

Salem
333 High Street, N.E.
Suite 200
Salem, OR 97301-3614
Phone: (503) 371-3330
(800) 315-4172
Fax: (503) 371-5336

Nothing in this communication creates or is intended to create an attorney-client relationship with you, constitutes the provision of legal advice, or creates any legal duty to you. If you are seeking legal advice, you should first contact a member of the Labor and Employment Team with the understanding that any attorney-client relationship would be subsequently established by a specific written agreement with Harrang Long Gary Rudnick P.C. To maintain confidentiality, you should not forward any unsolicited information you deem to be confidential until after an attorney-client relationship has been
established.

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