Sunday, November 29, 2009

Employment Law, E-Mail, and Expectations of Privacy

"The Law of E-Mail" may be fertile ground for an aspiring legal treatise writer.

We've written previously about courts grappling with the technology; see this post, for example, for an analysis of a City of Charlottesville Circuit Court decision examining whether a series of e-mails constitutes an enforceable contract.

Today we look at e-mail in the employment law context: in a recent Wall Street Journal article (here), Dionne Searcy cites a trend of courts holding that employees -- under certain circumstances (that's always the key, right?) -- have a reasonable expectation that e-mails sent from their work computer will remain private.

As Searcy points out, the prevailing view of e-mails sent from work computers has been that they are the property of the employer, regardless of whether the messages are sent from a work or personal e-mail account:
In past years, courts showed sympathy for corporations that monitored personal email accounts accessed over corporate computer networks. Generally, judges treated corporate computers, and anything on them, as company property.
Recently, however, several courts have sided with employees who've argued that they reasonably expected their e-mails from personal accounts were private -- as opposed to company -- property.

Searcy gives the example of a New Jersey decision:

In a case earlier this year in New Jersey, a worker on the brink of resigning from her job at the Loving Care Agency Inc. used a personal, password-protected Yahoo account on a work laptop to email her lawyer to hash out the details of a workplace discrimination suit she was planning to file against the agency. After the employee, Marina Stengart, left her job and filed suit, her employer extracted the emails from the hard drive of her computer laptop.

A lower court found that the emails from Ms. Stengart were company property, because the company's internal policies had put her on sufficient notice that her emails would be viewed. But a New Jersey appellate court disagreed, ruling in her favor in June, ordering the company to turn over the emails to Ms. Stengart and delete them from their hard drives.

The court's ruling went so far as to dissect the company's internal policies about employee communications and decided they offered "little to suggest that an employee would not retain an expectation of privacy in such [personal] emails." "We reject the employer's claimed right to rummage through and retain the employee's emails to her attorney," the appellate court ruling said.

Searcy does not cite to any Virginia decisions in the article (though she does review one Virginia dispute that settled), and given the small sample size it's difficult to say if she has identified an actual trend in the law or just several outlier cases.

Nevertheless, employers would be well-advised to articulate clearly and in detail (and in writing!) their e-mail policies. For their part, employees should always err on the safe side and not use the company computer for private correspondence.