Posts Tagged ‘company’

Are your electronic communications at work private or employer property?

Written by Mike Pisauro on October 20th, 2009 in Uncategorized | No Comments »

Last month the New Jersey Supreme Court started the 2009-2010 year.  On the calendar for consideration is Stengart v. Loving Care Agency, Inc.  I wrote about the trial court’s decision and the appellate division’s reversal earlier.

The Supreme Court’s website lists the issue under to consideration as:

Under the circumstances presented, does the attorney-client privilege protect this employee’s emails with her attorney sent through her personal, Internet-based email account while using her employer-issued computer?

It should be interesting to see the decision from the Court.  Will they rule narrowly to protect the attorney client privilege as is suggested by issue under consideration? Therefore, leaving employers free to maintain and view other types of private communications of their employers.  Or will the Court maintain the appellate court’s ruling that the policy must be related to the employer’s reasonable interests?  Or will the Court re-instate the trial court’s decision and leave unfettered an employer’s right to monitor and maintain an employee’s communications.

It will be several months before the Court hears oral argument and renders a decision.  In the meantime what are employers and employees to do?  For employees the solution is simple.  Assume that every electronic communication you have while at work or on a work supplied machine is subject to monitoring and maintained by your employer.  If an employee truly wants private communications they should use their own equipment to have those communications.  In the era of readily available smart phones, netbooks and laptops; having private communications can be had with a little planning and investment.

For an employer the situation is a little more complicated.  First, the employer must have a clear policy in place which has been provided to all of its employees.  Second, the employer must follow that policy and not let the exceptions be the rule.  Third if you choose to monitor and record all private conversations, consult with an attorney before you access and use that material against your employee.

Hopefully the Supreme Court provides guidance and clarity to this issue.

Appellate Division Restricts Company's Computer Usage Policy

Written by Mike Pisauro on July 6th, 2009 in Contracts, Courts, Employee/Employer, Privacy | 1 Comment »

The Appellate Division recently overturned the Trial Court’s decision in Stengart v. Loving Care Agency, Inc. I wrote about this case back in March in “Why it’s important to establish a computer usage/electronic communication policy.” Stengart, the Plaintiff had sent her attorney emails using her own personal web based email account, but used the employer’s computer. After the filing the lawsuit against her employer, the employer was able to forensically recover the emails to the attorney. The Ms. Stengart sought to force the employer to return the emails and disqualify the employer’s law firm based upon violating the attorney client privilege. The Trial Court held that emails sent by an employee to her attorney using her employer’s computer and network was the “property” of the employer and could be used by the employer in the litigation against it by the former employer.

The Appellate Division reversed this decision and held that an employer’s right to the content of an employee’s communications was not unfettered and would not be upheld when it had “no bearing on the employer’s legitimate interests.” The Court also discussed the competing interests between the expectation of privacy between client and attorney versus a company’s interest in monitoring its computer usage.

While not controlling the Court’s decision, the Appellate Division was not clear that the computer usage policy, relied on by the Trial Court, was in place during the time frame the Plaintiff emailed her attorney. Further the Court found the policy, assuming it was in place, was confusing. For example the company acknowledged that employees could use computers for occasional personal use, but never defined or explained the boundaries of personal usage. Then the company provided that all computer usage would be not be private and was the property of the company. Overall the Court found the policy, assuming it was in effect, to be unclear, confusing and conflicting.

In its decision the Court affirmed the right of an employer to unilaterally set the rules and regulations of employee conduct, but noted that this right was not unlimited and had to be reasonable and related to the employee’s duties. Having affirmed employer’s policies in general, the Court had trouble enforcing the alleged computer usage policies of Loving Care because the policies did not seem to have a strong enough relationship to the employer’s legitimate interests. The Court was also concerned that internet access has become so entrenched in our society that people routinely access bank records, file income tax returns, access medical records and other very confidential private activities. And Loving Care’s policy did not account for these realities. The employer had not provided a legitimate interest in ownership over these kinds of personal records.

The Court in reversing the trial court, wrote:

A policy imposed by an employer, purporting to transform all private communications into company property – merely because the company owned the computer used to make private communications or used to access such private information during work hours – furthers no legitimate business interest.

While the Court agreed that companies have an interest to make sure their employers are not engaged in illegal activity using company property, and that the company had a legitimate interest in ensuring that its employees where not distracted from the company business, companies usually did not have an interest in the content of the personal communications.

The difficult thing with this ruling is that the Court did not explain the contours of what an employer could and could not do in monitoring an employee’s computer usage. Instead the Court hinted that this area maybe worthy of legislative direction. Until the legislature acts, the questions for employers are many. Would a Court make a distinction between a company’s claimed ownership over confidential private information versus a company’s monitoring of an employees computer usage. If a company can monitor but not retain, a record of employees’ computer activity, how can a company defend a disciplinary or firing decision if it cannot retain the proof? Also would a court enforce a complete banned on an employee’s use of a company computer system for personal usage?

While the enforceability of any computer/eletronic usage policy will be open for interpretation by the Courts, it is still better to have a well crafted policy in place than not having one at all.

Why it’s important to establish a computer usage/electronic communication policy ?

Written by Mike Pisauro on March 25th, 2009 in Courts, Employee/Employer, Privacy | 2 Comments »

The ability to search the Internet and communicate through email has become an integral part our daily existence – both at the office and at home. However, the line separating these two worlds is not always clearly delineated. For example, you may find yourself using the office computer to pay personal bills online during your lunch hour or, logging in to the office computer after hours to catch up on work in order to make your deadlines. Some studies suggest that at least 1/3 of the time an employee spends on the computer is for non-work related activities. While many employers understand their employees’ desire or need to do non-work related activities at work. But it should be understood that not all of this activity is innocent. For example nearly 70% of the pornographic material downloaded from the internet is done during the work day. If this is going on at your business it may open you up to a lawsuit for hostile work environment. In addition to incoming material, you also need to keep an eye on what is going out to ensure that client lists and other proprietary information is not being distributed outside of your business – either intentionally or accidentally.

The question, from both an owner’s and an employee’s perspective, should be “are those computer activities private to the individual or are they company property?” The answer to that question boils down to whether the company has a policy in place regulating employees’ computer usage.

A recent law division case reaffirmed the importance having both an established policy in place and ensuring that your employees are aware of that policy. In the case of Stengart v. Loving Care Agency, Inc., an employee used her company-issued laptop to access her personal webmail account to communicate with her attorney regarding the filing of a lawsuit against her employer. After the employee left the company and filed suit the company and its lawyers made a copy of the laptop’s hard drive and recovered the emails to and from her attorney. The former employee attempted to bar the employer from using those emails as she alleged they were protected under the attorney client privilege.

In determining whether or not the emails were protected by the privilege the Court looked to whether the employee had an expectation of privacy in the emails. The Court rejected the employee’s claim by noting that while the law provides some level of privacy to an employee’s use of the a company’s computer that expectation of privacy can be negated by the company’s computer usage policy. In this case the employer had established a policy that provided that the computers were company assets and that all emails, voice mails, internet use and communication and files maintained on those computers were part of the company’s business and client records. The policy specifically provided that the electronic communications were not considered private or personal to the employee.

In light of the employer’s policy on computer use and communication, the Court ruled:

When an employee has knowledge of the employer’s electronic communication policy which adequately warns that any and all internet use and communication conducted on the employer’s computer is not private to the employee and warns that E-mail and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records, such communications are not . . . to be considered private or personal.

In short a Court is unlikely to enforce any rights to privacy that an employee may have in regards to their electronic communications if the employee is clearly on notice that they should not expect privacy. This means that the employer should have a written policy, signed by the employees, on computer usage. The policy should not only detail the privacy issues but also clearly identify what is considered “appropriate usage” of the computer.

By establishing clear policies in these regards you can also help protect your business against loss of vital information or the creation of an inappropriate work environment.

Finally, even with the right policies in place, keep in mind that a policy that is not enforced is almost as bad as no policy at all. Therefore, you should ensure that your employees adhere to that policy and that any exceptions are clearly dealt with.