|
|||||||||
|
EMPLOYER CLIENT ALERT: MAY 14th, 2010 New
Jersey Supreme Court Rules Recently, the New Jersey Supreme Court affirmed the decision of the
Appellate Division in a case we reported on in our July 2009 E-Alert,
i.e. Stengart v. Loving Care Agency
(http://www.lcrlaw.com/News/EmployerClientAlert07-01_09.htm). The issue
before the Supreme Court was whether an employee had a reasonable
expectation of privacy and confidentiality in e-mails to and from her
attorney, which she sent and received through her personal, password
protected, web-based e-mail account using an employer issued laptop
computer. The Supreme Court held that the employee could reasonably have
expected that correspondence with her attorney through her personal,
password-protected, web-based e-mail account would remain private. By
using her personal email account and not saving the password, the
employee had a subjective expectation of privacy. The Court held her
expectation was also objectively reasonable because the employer’s
policy was ambiguous. Finally, the Court held that the employee did not
waive the attorney client privilege. The Supreme Court remarked that employers can adopt and enforce
lawful policies relating to the computer use to protect their assets and
the productivity of their employees, but an employer has no basis for
reading the content of personal, privileged, attorney-client
communications even if their policy provides for it as such a policy
would not be enforceable. Bottom Line: A carefully drafted electronic communication policy can effectively establish the employer’s rules and policies regarding use of the employer’s electronic communications system. It can prohibit or limit personal use. The employer can properly discipline an employee for using the employer’s computer for personal use or for otherwise endangering the employer’s private information or assets. What a policy cannot do is provide for employers to read privileged communications between an employee and her attorney even when those communications are exchanged on a company issued computer. This Laddey, Clark & Ryan, LLP Client Alert provides information of
general interest to our readers. It is not intended, and should not be
used, as a substitute for consultation with legal counsel. If you have
any questions regarding specific issues raised in this Employer Alert,
you may contact Thomas Ryan, Esq. or Linda Day, Esq. of Laddey, Clark &
Ryan’s Employment and Labor Practice Group at (973)729-1880. The Employment and Labor Practice Group
|
|||||||||
