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.