Employers Can't Snoop in Privileged E-mails

Since Google became a household name in the 1990s, companies have been implementing policies concerning their employees' use of the Internet while at work. Today, the majority of employers large and small tell workers that they may monitor anything the employees access on their work computer. Ridgefield Park, N.J.-based home health care provider Loving Care Agency Inc. was no exception.

But when Loving Care acted in reliance on its policy and read some e-mails an ex-employee had sent to her lawyer, the Superior Court of New Jersey Appellate Division wasn't happy. In Stengart v. Loving Care Agency Inc., the court ruled that in certain circumstances, an employer's regulations have to yield to the employee's privacy rights.

But for employers, the analysis is not so clear. "It's easy to see how counsel for Loving Care thought they had a right to review these e-mails," says Eric Savage, a shareholder at Littler Mendelson. "[Employers think,] 'I own the computer, I provide the Internet access, and you accessed these e-mails on my server. Why don't I have the right to read them?'"

Indeed, other courts have taken that exact approach to this issue. In similar scenarios, numerous courts have found the employer had a right to review an employee's "private" communications. In the 2007 decision in Scott v. Beth Israel Medical Center, a New York state appellate court found that an employee waived the attorney-client privilege when he used his work computer to communicate with his lawyer because the employer's electronic communications policy put him on notice that such communications would not be kept private.

Adele Nicholas

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