Think twice before sending e-mails from work

When Julie Holmes felt that her employer reacted negatively to her announcement that she was going to take maternity leave, she e-mailed a lawyer about filing a lawsuit from her company computer. The company, Petrovich, later obtained those e-mails and introduced them as evidence in the lawsuit. Holmes argued that the e-mails should be barred because they were protected by the attorney-client privilege; a California court of appeals disagreed.

The court, in a 3-0 decision, found that Petrovich had a right to access the e-mails because it had made it clear in its company policies that e-mails were not private and that the company reserved the right to monitor office computers to ensure they were being used for business purposes. Because of this clear policy, the court equated Holmes’ e-mail akin to her meeting with her lawyer in a conference room at the company, speaking in a “loud voice, with the door open, yet unreasonably expecting that the conversation overheard by Petrovich would be privileged.”

Although Holmes used a work e-mail for the correspondence, the court suggested that using a personal e-mail accessed through a work computer would have the same result. The court focused on the fact that Holmes used the company’s computer and that the company had reserved the right to search all “files and messages” on those computers. The court distinguished this decision from Stengart v. Loving Care Agency, Inc., a case that Holmes relied on in her argument. In Stengart, the use of a personal e-mail account was found to be private, confidential information because the company’s policy did not clearly state that such use was not private.

Holmes claimed that even though there was a policy in place stating that e-mails could be checked randomly, the “operational reality” was that there was no access or monitoring of employees’ computers. Holmes based this “operational reality” argument on a prior case where a police officer’s text were found to be private because supervisors told employees that messages were never checked. However, the Supreme Court reversed that Ninth Circuit decision and stated that it was immaterial that the company didn’t actually monitor pagers if there was no written policy contradicting the company’s warning that they were monitored. The court appears to take a position that finds the conduct of employers irrelevant as long as there is a written policy in place.

Bottom line: don’t send any information through a company computer that you don’t want the company to read.

As the future of electronic privacy law in the workplace continues to develop, the definition of privacy will continue to develop as well.

“Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.” – Justice Kennedy in City of Ontario, California v. Quon