EMPLOYER CLIENT ALERT:      7/1/2009

Are You Ready for Battle?
The Importance of Having an Electronic E-mail Policy

As we have reported in the past, the number of wrongful termination suits has increased dramatically during the recent economic downturn. A significant portion of the battle between employer and employee is won or lost in discovery. This e-alert is intended to prepare employers for battle long before the filing of a wrongful termination suit by a disgruntled, former employee. Not surprisingly, this readiness begins with having sound policies for your employees which, ideally in the form of an Employee Handbook.

During a routine discovery search in a wrongful termination suit, Stengart v. Loving Care Agency, the employer defendant searched the ex-employee/plaintiff’s computer and discovered an email the plaintiff had sent to her attorney before her employment terminated. In support of her motion to have the email destroyed or returned to her, plaintiff argued that since the email had been sent while she was logged on to her personal Yahoo email account, it was private. She also argued that it was privileged because it was a communication to her attorney and protected under the attorney client privilege. The Employer argued that the former employee had waived her right to claim attorney client privilege or violation of privacy rights when she communicated to her attorney during business hours from her employer-issued laptop.

The trial court ruled in favor of the employer stating that the plaintiff did not have a reasonable expectation of privacy concerning the email to her attorney. In ruling, the trial court relied on the employer’s policy concerning electronic mail. Specifically, the Employee Handbook explicitly (1) prohibited employees from using the email system for employment activities outside the scope of the Company’s business; and (2) stated that emails sent on the Company’s server are not considered private or personal to any employee.

In another recent case, State v. M.A., the Appellate Division ruled that a former employee on trial for stealing over $600,000 from his employer, had no reasonable expectation of privacy to personal information he had on his former employer’s computer, and could not claim the Fourth Amendment’s protection from unreasonable search and seizures.

Bottom Line: Employers should have a written electronic personnel policy which clearly states: (1) Employees should have no expectation of privacy in correspondence sent from the Employer’s server; (2) Employees should not consider e-mail a secure means of communication; and (3) Employees should not say or write anything in an e-mail that they would not want someone other than the intended receiver to hear or read. Employers should have employees sign an acknowledgement of, and consent to, the Employer’s electronic personnel policies.

The Employment and Labor Practice Group

Thomas N. Ryan, Esq.	Michael S. Garofalo, Esq.	Ursula H. Leo, Esq.	Linda Day, Esq.