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.