Client Alert
Contact:
 Steven B. Harz, Esq., Chairman
Labor & Employment Law Group
201-342-6000
April 1, 2010

NEW JERSEY SUPREME COURT ISSUES SWEEPING NEW RULES ON COMPANY EMAIL POLICIES

Dear Clients and Friends:

On March 30, 2010, the New Jersey Supreme Court issued an opinion that will require employers across the state to drastically revise their policies on electronic communications. In the case of Stengart v. Loving Care Agency, Inc., the Supreme Court held that an employee’s e-mail communications with her attorney regarding a proposed lawsuit against her employer were privileged, despite the fact that the emails were sent during working hours on her workplace computer and the employer’s “Electronic Communication Policy” appeared to deny the employee of any right to privacy in such emails.

The employee’s emails in the Stengart case were sent through her password-protected personal Yahoo email account, as opposed to the employer-provided email system. Following the employee’s resignation, experts hired by the employer were able to create a copy of all the employee’s e-mails on her company laptop’s hard drive which also contained various emails between the employee and her attorney.

The employee argued that the emails between her and her attorney were subject to the attorney-client privilege. In response, the employer pointed to what it believed was a valid policy regarding electronic communications. The employer’s policy stated, among other things, that the company had the right to “review, audit, intercept, access, and disclose all matters on the company’s media systems and services” and that “[e]-mails… are not to be considered private or personal to any individual employee.”

The Supreme Court held that no policy, no matter how well-drafted, will be enforceable with regard to attorney-client communications sent or received on a personal, password-protected email account using the employer’s equipment. The Court also gave guidance, however, as to what must be included in such policies to put employees on notice that they have no right to privacy regarding e-mails (other than those which are attorney-client privileged):

  • The policy must specifically advise employees that they have no right of privacy in communications sent or received via personal web-based email accounts on company equipment;
  • If the employer has software in place that records or otherwise allows the employer to view its employees’ activities on company-provided electronic equipment, or if the employer is otherwise able to so monitor such activities, the policy must specifically advise the employees of that fact;
  • The policy must specify what equipment is covered by the policy and, if applicable, should specifically reference items such as company-provided laptops, BlackBerrys, and other equipment that may be utilized outside of the office; and
  • If the occasional use of email for personal reasons is permitted, the policy must clearly state that, notwithstanding such permission, the employees should never regard such communications as personal or private and should avoid sending any communication that might be of a personal nature.

Making these changes as soon as possible will not only assist in protecting an employer from lawsuits based on claims of privacy, but will also allow the employer to utilize information obtained from an employee’s company-provided computer in the event that litigation is initiated against the employer by an employee. Such information is often crucial to defending such litigation.

Please call us at once if you require assistance or have any questions with regard to your business’s electronic communications policy or any other labor and employment law matter. Steven B. Harz, Esq. at (201) 342-6000, or via e-mail at sharz@hertenburstein.com.