• July 8, 2010

    Employee Email Communication Via Employer Laptop Deemed Private

    By Tiffanie C. Benfer, Esq.

    The Supreme Court of New Jersey has ruled that under certain circumstances, an employee can reasonably expect email communication with the employee’s attorney through his or her personal account to remain private. In a case of first impression, the court concluded that sending and receiving e-mails via a company laptop did not eliminate the attorney-client privileged that protected the correspondence at issue. (See Stengart v. Loving Care Agency, Inc. 201 N.J. 300 (2010).)

    Stengart brought claims against her employer pursuant to New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to 49. She alleged constructive discharge because of a hostile work environment, retaliation, and harassment based on gender, religion, and national origin.

    Stengart’s employer provided her with a company laptop to conduct company business. Stengart also could use her laptop to access the Internet via the company’s server. Unbeknownst to Stengart, the laptop contained software that copied each web page she viewed and saved this information on the computer’s hard drive in a “cache” folder of temporary Internet files. The temporary files remained on the laptop’s hard drive, unless deleted and overwritten with new data. On several occasions, Stengart used her laptop to access her personal password-protected yahoo email account to communicate with her attorney.

    The employer hired a computer forensic expert to recover all files stored on the laptop, including emails. Counsel for the employer proceeded to review Stengart’s emails to her attorney and use the information in the emails in the course of litigation.

    The company’s written policy on electronic communications stated:

    The company reserves and will exercise the right to review, audit, intercept, access and disclose all matters on the company’s media systems and services at any time with or without notice. …E-mail and voice mail messages, internet use and communication with computer files are considered part of the company’s business and client records. Such communications are not to be considered private or personal to any individual employee. The principal purpose of electronic mail (email) is for company business communications. Occasional personal use is permitted; however, the system should not be used to solicit for outside business ventures, charitable organizations, or for any political or religious purpose, unless authorized by the Director of Human Resources.

    The New Jersey Supreme Court determined that the policy’s use of general language to refer to its “media systems and services” left unclear whether or not the use of personal, password protected, web-based e-mail accounts via company equipment were covered under the company’s policy. Additionally, the court noted that the company’s policy did not address personal accounts nor did it warn employees that the contents of their personal e-mail accounts are stored on a hard drive and can be retrieved by the company.

    The court also found that the policy contained conflicting information. It stated e-mails “are not considered private or personal to any individual employee,” but then proceeds to state that “occasional personal use of e-mail is permitted”.

    Under the circumstances, the Court found the policy “did not address the use of personal, web-based e-mail accounts accessed through company equipment” and, therefore, Stengart had a reasonable expectation of privacy in her e-mail exchange with her attorney on her company’s laptop via her password-protected yahoo e-mail account.

    The New Jersey Supreme Court’s decision in this case is fact specific and suggests that under different circumstances, the outcome might be different. The court made specific note of the fact that Stengart never saved her Yahoo ID or password on the company laptop and acknowledged that courts might treat e-mails transmitted via an employer’s e-mail account differently. The court also acknowledged that a clear company policy banning personal e-mails may diminish the reasonableness of an employee’s claim to privacy.

    Other Decisions

    The Appellate Division previously has held that a defendant did not have a reasonable expectation of privacy in personal information stored on the employer’s computer under a separate password. The court also has held that there was no legitimate expectation of privacy where an employee used a company computer to access websites containing adult and child pornography.

    Other jurisdictions have considered numerous factors that can impact the expectation of privacy. For example: 

    • An employee should have no reasonable expectation of privacy in unprofessional e-mails sent to a supervisor through internal corporate email. 
    • There is no expectation of privacy of confidentiality when company e-mail is used to send attorney-client messages.
    • A company’s e-mail policy prohibiting personal use of computer eliminated any expectation of confidentiality.
    • The location of the computer can determine expectation of privacy.
    • E-mail messages that travel via the company’s server may be viewed differently by courts from e-mail messages that do not pass through a company’s server.

    In light of the New Jersey Supreme Court decision, employers in New Jersey should proceed with caution, and would be wise to have their company computer use policy reviewed by counsel. Employees also should er on the side of caution, and avoid using an employer-provided computer to convey confidential information.

    Hill Wallack LLP is a leading law firm in central New Jersey and eastern Pennsylvania, with offices in Princeton and Atlantic City, NJ and Yardley, PA. The firm has built a reputation for comprehensive problem-solving and aggressive advocacy. The firm has broad-based commercial capabilities and deep experience in a number of industry sectors, including community associations. With extensive government experience, Hill Wallack LLP represents businesses and public entities in many areas in which public and private interests intersect. Our attorneys are called upon to tackle some of the toughest legal and business challenges. We do more than advise on the law—we create real-world solutions.