Court rules against employer reading an employee's personal email in what could prove to be a landmark case

News by Dan Raywood

The New Jersey Supreme Court has ruled that an employer cannot read email messages sent via a third-party email service provider, even if the emails are accessed during work hours from a company PC.

The New Jersey Supreme Court has ruled that an employer cannot read email messages sent via a third-party email service provider, even if the emails are accessed during work hours from a company PC.

According to a report by nj.com, employees who use password-protected, third-party services can have a reasonable expectation of privacy.

The court upheld the sanctity of attorney-client privilege in electronic communications between a lawyer and Loving Care Agency's then executive director of nursing Marina Stengart. After she left and filed a discrimination and harassment lawsuit against the Bergen County home health care company in 2008, Loving Care retrieved the messages from the computer's hard drive and used them in preparing its defence.

Stemming from a harassment and discrimination lawsuit Stengart filed three years ago against Loving Care, she sent her attorney eight emails from her Yahoo email account using a company-loaned laptop about her issues with her superiors.

Supreme Court justice Peter Verniero said the decision will be helpful to companies and employers in the future. He said: “The court has now clarified an area of law, and any time you have a court clarifying an area of law, it's a positive development.” He noted that no top court in any other state has yet taken up the issue.

It claimed that the company's policy regarding email use was vague, and noted that it said ‘occasional personal use is permitted'.

Dark Reading pointed to legal analysis of the case, which suggests the court would have ruled against the company even if its policy had been more clearly stated.

It states: “The court stated that even a more clearly written and unambiguous policy regarding employer monitoring of emails would not be enforceable. That is, a clear policy stating that the employer could retrieve and read an employee's attorney-client communication, accessed through a personal, password-protected email account using the company's computer system, will not overcome an employee's expectation of privacy and the privilege would remain.

“The court's opinion also seems to suggest that employers cannot discipline employees for simply spending some time at work receiving personal, confidential legal advice from a private lawyer, although the court noted that an employee who ‘spends long stretches of the workday' doing so can be disciplined.”

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