Last updated July 27, 2017.
Our online age has made matters of employee privacy vastly more complicated, to say the least. Due to the prevalence of email communications, most employers have an express policy limiting, or outright prohibiting, the use of company computers for personal emails. Sometimes these policies go so far as to state that all email communications made by an employee from an employer-owned computer are considered the property of the employer, and therefore are searchable by the employer.
Such policies are fairly straightforward when it comes to personal emails sent not only on the company’s computer, but through the company’s corporate email account (i.e. firstname.lastname@example.org). But what about personal emails sent from the company’s computer using an online, password-protected email account? Does the company have a right to read and review those emails?
Company Computer Policy: Private, Password-Protected, Personal Accounts
In New Jersey, the law governing employee privacy for emails sent through online services such as Gmail and Yahoo has changed somewhat, offering employees a small degree of protection for these communications. Specifically, in Stengart v. Loving Care Agency, Inc., the New Jersey Supreme Court ruled that a former employee had a reasonable expectation of privacy in emails she sent to her attorneys over an employer-owned laptop, but using her own personal, password-protected online email account. The emails at issue concerned a discrimination suit against the employer that the attorneys ultimately filed on the employee’s behalf.
Although the decision was praised for shedding some clarity on a developing area of law, it is important to remember that the privacy protection established in Stengart only extends to emails sent under very limited, very specific circumstances. Indeed, the Stengart court cautioned that whether an employee has a reasonable expectation of privacy with respect to personal emails sent over a work computer depends upon the facts and “must be addressed on a case-by-case basis.”
Each Email Privacy Case Will Be Different
In Stengart, the facts supporting the employee’s privacy right in her emails were:
- The employee sent the emails by logging onto her own Yahoo mail account, using her own private ID and password. The court noted that although the employee used a company computer to access Yahoo mail, she did not store her Yahoo ID and password on the computer, bolstering her expectation that her emails would be kept confidential.
- The employer had a vague and conflicting policy regarding email. For instance, the policy plainly stated that the employer had the right to review “all matters on . . . media systems and services,” and that emails were “considered part of the company’s business records.” However, the court noted that the policy didn’t define “media systems and services,” leaving open the possibility that password-protected, personal web email accounts were beyond its scope.
Further, although the policy declared that emails “are not to be considered private or personal to any individual employee,” it also declared (in the very next section, no less) that “occasional personal use of email is permitted.” Understandably, the court found the policy flatly contradicted itself, creating uncertainty over whether personal employee email was private or not.
- The emails at issue were sent to the employee’s attorneys, regarding her working conditions and anticipated lawsuit against her employer. This alone was a compelling reason for the Stengart court to find a privacy interest in the employee’s emails, as they found these communications were subject to attorney-client privilege. In fact, the emails themselves contained a standard warning that their contents are confidential and may constitute attorney-client communications. Allowing the employer to search and review such emails, the court reasoned, would amount to a breach of public policy.
Your Personal Email May Not Be So Personal, After All
Given the foregoing, it would be wrong to jump to the conclusion that any employee is free to log onto Yahoo or Gmail and send personal emails on company time, yet retain complete ownership of those emails. As the Stengart court said:
Our conclusion that [the employee] had an expectation of privacy in emails with her lawyer does not mean that employers cannot monitor or regulate the use of workplace computers. Companies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies. And employers can enforce such policies. They may discipline employees and, when appropriate, terminate them, for violating proper workplace rules that are not inconsistent with a clear mandate of public policy.
In plain English, this means that when you log onto Facebook from your work computer to send gossipy messages to your friends, it is almost a certainty that you do not have a privacy right to those messages. What’s more, it’s very likely your boss has good grounds to discipline you for this.
Workplace email privacy is a complex issue, made more difficult by the speed in which online communication technologies are changing. As of this writing, I advise all employees to err on the side of caution when it comes to emails, texts, or any electronic chats or messages sent via the workplace.
Do not assume that using a password-protected online email system from a company computer gives you ownership of your emails. Further, do not assume that your employer will not be able to access these emails because they are sent “online” — an IT or computer forensics expert can often retrieve these files from your computer hard drive or the company server. If you are confused about your employer’s policy on personal emails, ask a manager for clarification.
Have an employment issue stemming from workplace email usage? Contact us here or call us at 609-243-0300 today for a free consultation.
Zatuchni & Associates specializes in discrimination claims across all protected categories for New Jersey workers. We’ve helped countless clients who have suffered workplace bias secure financial and legal compensation from their employers.