E-mail policy may not be as airtight as you think

E-mail. It seems like the most benevolent of business tools — inexpensive, quick, simple. So how come it keeps scalding companies in legal hot water?

For some time now, courts have upheld employers’ right to establish an electronic communications policy, putting workers on notice that anything they do on company computers is subject to management scrutiny. Work product, Internet surfing, e-mail … up until now, it’s all been fair game for review.

But a recent New Jersey appeals court ruling seems to poke a hole in that protection.

A quick look at the case: A woman sued her employer for discrimination. During a review of the contents of the employee’s company-provided laptop, the employer uncovered personal e-mail messages between the employee  and her lawyer. The messages discussed her pending lawsuit against the company.

The woman’s attorney sought a court order forcing the employer to turn over the e-mails, claiming they were protected by attorney-client privilege.  A lower court denied the request; the appellate court reversed.

Why? Just because the company owns the computer that doesn’t mean personal e-mails — sent through a Web-based, password-protected account — become fair game for employer scrutiny, the judge ruled. What’s more, the judge said, the company’s policy said that “occasional personal use” of company computers was permitted.

The take-home? First, this is a state decision, not federal (although it could well serve as fodder for future federal proceedings). Second, although it may seem reasonable — and practical — to allow employees occasional personal use of company electronics, it might make more legal sense to ban all non-business activity altogether.

And third: The Digital Age has brought its own brand of legal pain. Companies need to be vigilant about staying on top of computer usage policies to make sure they not only fit current business needs, but changes in law.

Cite: Stengart v. Loving Care Agency, Inc., 6/26/09

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