What does your corporate electronic communications or Internet Use policy say? Is it in plain English? Is it detailed?
- Employers, it’s time to change, amend or update your corporate electronic communications policy or face risks and perhaps, lose a lot of money.
- Employees, read that policy document very well.
I recently read a case Stengart v. Loving Care Agency, Inc., 2009 N.J. Super. LEXIS 143 (App.Div. June 26, 2009) about whether an employer had the right to review ex-employee’s personal emails retrieved via computer forensics. Apparently, before the plaintiff resigned from her job, she had sent private and confidential emails to her attorney using office computer but via her own personal (Yahoo) email account; did not store the password on the computer and the defendant (former employer) used them in the discovery process while responding to her lawsuit. The court held that the emails were protected by the attorney-client privilege even though they were sent using company computer because it was her personal Yahoo account that had a password (and the emails clearly stated that they were private and confidential). Therefore, she reasonably expected them to be private.
Food for thought:
- Does an employee have a reasonable expectation of privacy when using company computer?
- Isn’t expectation of privacy different from expectation of confidentiality?
Employers, take note.
Does your electronic communications policy permit occasional personal use? If your electronic communications or Internet Use policy states that emails can be monitored at anytime, does it include personal emails sent via personal and password-protected emails?
Your Ethics and Compliance team should ensure that the use of emerging technology, emails or new media is spelled out in your electronic communications policy. It will cost you more in the long run if you don’t mention the actual electronic device e.g. BlackBerry, iPhone, Droid, Skype or the social media platform, e.g. Facebook, Twitter, etc. You have to spell it out and include blogs, tweets, IMs, BB messages and whatever lingo is being used.
Employees, understand this.
There has been an increase in employee job terminations due to nonchalant, in some cases deliberate and profane social media posts by employees and an increase in lawsuits filed by former employees. The winner = dicey. For the employee, it may appear too extreme when employers block access to social media platforms like YouTube or Facebook in the work place. However, for the employer, ‘we are simply just protecting our interests and reducing any risks to liability and managing our reputation.’
Can an employer monitor personal email? It depends. Even if you use your personal email account to send emails on company computer, they can still be read if retrieved by computer forensics (even if you deleted them), with reasonable expectation of privacy or not.