Employers often put employees on notice, through an electronic resources policy, that communication via company e-mail accounts is not private. Far fewer policies, however, address employees’ use of their personal Internet-based e-mail accounts using company computer resources. What should an electronic resources policy tell employees on that subject?

A recent New Jersey case, Stengart v. Loving Care, sheds some light on the answer. Before Maria Stengart resigned and sued Loving Care, her employer, she e-mailed her lawyer through her personal web-based account from her company-issued computer with Loving Care’s Internet access. With the help of a computer forensic expert, Loving Care was able to recover temporary files stored on the hard drive of the company-issued computer which contained copies of Stengart’s attorney-client communications. (Employers should note that many web-based e-mail applications leave such temporary files on the hard drive of the sender’s computer).

When Stengart discovered that Loving Care’s lawyers planned to use her e-mail in the litigation, she objected. The trial court was asked to decide whether the e-mail, sent during work hours on a company laptop, was protected by the attorney-client privilege. The court held that it was not.
 

Key to the decision was the following company policy: “[I]nternet use and communication . . . are considered part of the company’s business and client records. Such communications are not to be considered private or personal to any individual employee.” Put another way, Loving Care told its employees that their Internet use is not private. Stengart’s Internet-based e-mail fell squarely within the policy. As a result, she could not claim the e-mail was protected by attorney-client privilege.

There are two important takeaways for employers. First, be specific about online privacy using the company’s electronic resources. In particular, tell employees that they should not use the company’s Internet connection to access personal e-mail accounts for purposes of conducting company business or to send any e-mail that they wish to keep private.

Second, ensure that you can prove each employee knows the rules. Stengart tried to claim that she was not aware of Loving Care’s Internet policy. The trial court rejected that argument because she was a long-time employee with significant management responsibility. Lower-level, shorter-term employees may have a more credible argument. To defeat that argument before it is made, employers should document that each employee has acknowledged receipt of the company’s electronic resources policy.

This entry was co-authored by Philip L. Gordon and Kate H. Bally.