Workplace Privacy

Subscribe to Workplace Privacy via RSS

In a continuation of the Stengart v. Loving Care Agency case we wrote about in August 2009, the New Jersey Supreme Court ruled on March 30, 2010 that emails sent by an employee from a company laptop via a web-based email account (Yahoo!) to her attorney were protected from disclosure by the attorney-client privilege. In reaching this conclusion, the Court also ruled and provided insight on a far broader and more practical issue for employers — namely, how to draft enforceable computer usage policies and/or make existing policies more effective.
…

In August, we wrote about the ruling of a New Jersey appellate court in Stengart v. Loving Care Agency, Inc., in which the court took a very narrow view of the ability of employers to monitor the e-mail communications of employees over its computer networks. In that case, which is now on appeal to the New Jersey Supreme Court, the appellate court held that an employee did not waive her attorney-client privilege with respect to e-mails that she sent to her attorney while using the employer’s computer network, but via her personal Web mail account, despite the existence of a broadly worded communications policy giving the employer the right to access all communications occurring over its network. The appellate court court ruled that even if the employer’s policy applied to the employee (she disputed its applicability), the employer’s right to access to such communications pursuant to that policy was limited by the employer’s "legitimate business interests." Such interests did not extend, the court concluded, to the employee’s communications with her attorney.

In contrast to the New Jersey court’s narrow view of the applicability of such policies, the district court judge in Alamar Ranch, LLC v. County of Boise, 2009 U.S. Dist. LEXIS 101866 (D. Idaho Nov. 2, 2009), held that knowledge of employer monitoring of employee communications over its network could be imputed, not only to the employee but to the employee’s attorney as well. As a result, the court held, the attorney-client privilege had been waived with respect to messages sent by the employee to the attorney using her employer-assigned e-mail account, and to messages sent to the employee at her employer e-mail address by the attorney.

In Hernandez v. Hillsides, Inc., S147552 (Aug. 3, 2009), the California Supreme Court unanimously held that the mere placement of a hidden video camera in an employee’s office could constitute an invasion of privacy, even if the camera was never actually used to record the employee. Under the specific facts of the case, however, the Court ultimately found no liability because the intrusion was relatively minor, limited and justified, but California employers should be aware that the use of hidden surveillance cameras without notice or warning in “semi-private” office space is likely to produce an actionable claim for invasion of privacy in many cases.
…

In January 2009, we reported on the postponement of a controversial federal regulation resulting from a legal challenge filed by Proskauer Rose on behalf of several trade organizations, including the U.S. Chamber of Commerce. The rule, the result of an executive order signed by then-President George W. Bush, requires most federal contractors and subcontractors to verify their employees’ work eligibility using the Department of Homeland Security’s E-Verify system. On July 8, 2009, President Barack Obama’s Administration announced its plan to go forward with the rule. Immediately after this announcement, the U.S. Senate approved legislation that would codify the rule into law.

The Ohio Court of Appeals, in State v. Wolf, No. 08-16, slip op. (Ohio Ct. App. 5d April 28, 2009), recently upheld application of Ohio’s computer crime law to an employee who used his work computer to engage in criminal conduct (solicitation of a dominatrix-prostitute). While this holding may seem uncontroversial, another aspect of the decision might open the door to imposing criminal liability on employees for violating employer computer use policies.

Wolf was a Shelby City Wastewater Treatment Plant employee. The plant superintendent discovered nude photographs on Wolf’s work computer while performing routine maintenance. The superintendent notified police, who discovered that Wolf used the city-owned computer to solicit a prostitute, visit pornographic websites and upload nude photographs of himself during work hours.  At trial, the jury found him guilty of soliciting prostitution, theft in office and unauthorized use of a On appeal, Wolf challenged the trial court decisions overruling his motion for acquittal on both the charge of theft in office and the charge of unauthorized access to a computer. The Court of Appeals agreed that the trial court should have acquitted on the theft in office charge, but ruled that Wolf’s use of the office computer was unauthorized under Ohio law.