Posts Tagged ‘Stengart’

Employees may "own" their own web-based emails

Written by Mike Pisauro on March 31st, 2010 in Uncategorized | No Comments »

Nearly  a year ago I wrote about the trial court’s decision in Stengart v. Loving Care Agency, Inc  in which the court decided that an employee’s emails were the company’s property and could be used against the employee. Yesterday, the NJ Supreme Court has decided whether an employer owns an employee’s personal emails.

But first, a little background is in order. In this case, Ms. Stengart made use of her company laptop to send emails, discussing her planned suit against her employer, to her attorney.  Those emails were sent not using the company’s email system but her personal, password protected Yahoo account.  After Ms. Stengart filed suit, her former employer had an image made of the laptop’s hard drive and examined the contents.  Unknown to Ms. Stengart the company had installed software that logged her activity on the laptop and that software had saved copies of her emails to and from her lawyer.

Yesterday, the NJ Supreme Court found that “under the circumstances” Ms. Stengart had a ”reasonable expectation of privacy” in her emails.  As the emails were sent to her lawyer, the Court further found that the employee had not waived the attorney-client privilege by using the company’s laptop to send the emails.  The Court went even further by writing that, even if the company banned all personal use of their computers,  an employee’s use of a personal password protected email account to send email to their attorney would not allow the employer to break the attorney client privilege.

Outside of the attorney-client area, the Supreme Court has given guidance to both employees and employers as to what to expect.  The Supreme Court based its decision on whether the employee has a “reasonable expectation of privacy”.  That expectation is determined by  the company’s policy on the issue. The Court looked at Loving Care’s policy, assumed that it was in effect at the time, and applied to Ms. Stengart both assumptions were in contention. Loving Care’s written policy was found in its employee handbook and provided:

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. . . .

Email and voice mail message, 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 to any individual employee.

The principal purposes of electronic mail (e-mail) 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 Court noted that there was no mention in the policy that the company was making images or copies of its employee’s activities on the computer.  The policy also did not define some of the terms it used, such as , like “media systems and services” and did not discuss at all the ramifications of using a personal, web-based email account.  The policy was also silent as to whether the company considered the personal email account message as part of its email system and its property or whether such accounts were considered outside the company’s property interests.  Given the many ambiguities created by the policy, the Court found Loving Care’s Employee Handbook was  ambiguous and unclear.

As lawyers learned in “Contracts 101” is that, in a contract, ambiguities will be construed against the drafter.  In this case, because the employee handbook was  ambiguous and unclear, the Court gave the benefit of the doubt to the employee.  As the policy did not clearly apply to password protected web-based emails, the Court was not going to apply to the company’s policy that emails were part of the company’s business records to Ms. Stengart’s yahoo emails.

From an employers’ prospective it is clear that if you want to “own” all the activity that occurs on a company computer, you must make that position very clear in your handbooks and policies.  If a company is going to use logging or imaging software to track usage, that fact needs to be disclosed as part of the company’s written polices.  Even with very clear policies in place, I am not sure that a Court would enforce a handbook policy that results in the company owning, and being able to use, personal emails from an employee to their physician or accountant, etc.   An employer probably could ban all personal use of the computer and also  could install filters and software to prevent employees from going to certain websites, such as Yahoo mail, AOL or gmail.  However, while these options may be legal and technically possible, I do not believe that such tactics acknowledges modern reality:  Employees need access to computers and the internet on a daily basis for personal use.

From an employee’s perspective, it is reassuring to know that, if you do not send personal emails using the company’s email program and email accounts, your information may be protected as confidential and your personal information.  What you may not know is whether the company is recording and monitoring your activities on the computer.  If they are and if they review your activity it is little solace that they cannot actually own your emails.  Your discussions with your doctor, accountant or lawyer or your personal spat with your signification other will have already been made public to at least one person.   The lesson to be learned from this case is that if you must use your company’s computer to send emails make sure you to use a web-based service, such as Yahoo, gmail, AOL,  or even your ISP’s own web-based email system.  Do not save your web-based email passwords on your work computer.  Better yet do not use your company’s computer for any activity that you would rather keep private.  If you must send emails of a personal nature during the work day, it is far better to use your personal cell phone’s email capabilities than it is to use your work computer.

Prior Posts:

Are your electronic communications at work private or employer property?

Appellate Division Restricts Company’s Computer Usage Policy

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

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.