A recent court decision that addressed an employee’s expectation of privacy while using an employer-issued computer highlights the need for all employers to implement explicit policies regarding email and internet use — a step that may save considerable time and resources for the employer in the event an employee files a wrongful termination or other type of claim against it in the future.
In Fazio v. Temporary Excellence, Inc., No. A-5441-08T3 (N.J. App Div., Feb. 2, 2012), the court specifically looked at the question of whether the attorney-client privilege applies to emails delivered by an employee to his attorney from an employer-issued computer. The New Jersey Superior Court held that under certain circumstances, an employee lacks a reasonable expectation of privacy when using an employer’s work-station for personal emails.
The plaintiff in this case initiated suit against his former employer alleging breach of contract, wrongful termination, and related causes of action. During the course of litigation Fazio claimed that certain emails he previously sent to his attorney pre-termination were subject to the attorney-client privilege. The emails in question were delivered from his company computer and company email system. The court concluded that the attorney-client privilege did not apply.
The Fazio court wrote that the attorney-client privilege protects only those communications in which the client has both a “subjective and reasonably objective expectation of privacy.” Whether the employee/client has such an expectation when sending emails from work requires an “inherently fact-specific inquiry.” In reaching its conclusion, the Fazio court contrasted its facts with those of the employee-friendly Stengart v. Loving Care Agency, Inc., 201 N.J. 300, 316-17, 990 A.2d 650 (2010). In Stengart, the New Jersey Supreme Court held that an employee’s emails sent from work to her attorney from a personal, password-protected email account were protected from disclosure. According to the court in Fazio, the plaintiff in Stengart had a reasonable expectation of privacy because she made an effort to shield the emails from her employer by using her own email address, which required a password to access. On the other hand, Fazio “took no steps whatsoever to shield the emails from his employer.”
Importantly, both courts evaluated the employer’s internet/email use policy in reaching their respective decisions. The employer in Fazio lacked an email/internet use policy altogether. The employer in Stengart circulated a computer-use policy that was silent to the use of its computer equipment to access personal email accounts. The lesson to employers is clear: Make certain to utilize an updated computer-use policy that explicitly confirms that all employees should have no reasonable expectation of privacy when using company computers or email.
In addition to a clause confirming the lack of privacy, employers should consider adding the following to their computer-use policies:
If you have questions about how this decision may impact your business or about implementing proactive computer-use policies, please contact Seth L. Laver (267.519.6877; firstname.lastname@example.org), Sean P. Beiter (716.566.5409; email@example.com), or another member of the Goldberg Segalla Labor and Employment Practice Group.