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July 22, 2009Client Alert

Electronic Communications Policies and Personal Emails: Ensuring Employer Access

Late last month, the Appellate Division of the Superior Court of New Jersey issued a decision which has significant implications for all employers. The main question in Stengart v. Loving Care Agency, Docket No. A-3506-08T1 (Appellate Division, Superior Court of New Jersey, June 26, 2009) was whether emails sent by a former employee to her attorney from her work computer (through a personal web-based email account) became the property of the employer by virtue of its electronic communications policy. The Court ruled that “the policies undergirding the attorney-client privilege substantially outweigh the employer’s interest in enforcement of its unilaterally imposed regulation [the electronic communications policy],” and rejected the employer’s claimed right to view and retain the employee’s emails to her attorney.

The electronic communications policy that Loving Care included in its employee handbook looks similar to policies that many employers have in place. For example, it provides that “e-mail and voicemail messages, 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.” It additionally reserves the right to the Company to “review, audit, intercept, access and disclose” such messages. Despite these seemingly clear statements, the Court ruled that Loving Care did not have the right to access emails sent by its Executive Director, from her personal Yahoo email account, to her attorney.

While this decision came from a New Jersey court, and is subject to additional appeal, there are several practical tips that are applicable to all employers with electronic communications policies.

What Factors Led the Court to this Decision?

The decision, while it appears to undermine an employer’s right to set work rules and policies as it sees fit, is instructive in that the court clearly sets forth the factors that led it to reach this conclusion.

First, there was confusion as to whether or not the electronic communications policy was actually disseminated. Additionally, several different versions were presented as evidence and it was unclear which version, if any, was the final version sent to all employees. Second, it was unclear whether, if such a policy was in fact in place, it applied to executive employees such as Stengart. Third, the policy specifically allowed for employees to engage in “occasional personal use” of the internet and email systems. But, the policy made no mention of how any emails or files created or received during such personal use would be treated, in terms of ownership and access. Finally, the emails sent by the employee were to her attorney – thus implicating the attorney-client privilege. The court therefore had to view the company’s electronic communications policy to see if it outweighed the strongly-protected attorney-client privilege.

What Steps Should You Take to Avoid a Similar Result?

In light of the ruling in Stengart, we recommend that clients look at their electronic communications policies to ensure that the policies contain the following information:

  • If your policy specifically allows employees to engage in some personal use of your computer/electronic systems, ensure that the policy states that any emails, voicemails or computer files created or received during such personal use are considered company property and subject to the same review and disclosure as are business related emails and messages.
  • Additionally, we recommend that you clarify when an employee can use the systems for personal use – i.e. break times, before and after hours of work – and prohibit the employee from conducting any business-related activity from a personal account.
  • Make sure that your policy clearly states which employees it covers.
  • Make sure that your policy explicitly covers emails sent from web based email accounts such as Yahoo, Hotmail, or Gmail, in addition to those sent from company email accounts.
  • Inform employees that even communications with their own personal attorneys are subject to review and disclosure.
  • Finally, if you end up in litigation with a former employee and come across email files which may be from that employee to his or her attorney, contact your counsel immediately so as to avoid any violation of the attorney-client privilege.
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