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New Jersey Supreme Court Limits Employer's Right to Review Employee E-mail Communications

April 2010

A recent New Jersey Supreme Court decision will have a significant impact on employers, as it limits the circumstances under which an employer may read an employee’s personal e-mails stored on a company’s computer system.

While most employers have promulgated policies governing the use of its computer systems, the New Jersey Supreme Court recently held that the mere implementation of a policy is not enough to allow an employer unfettered access to electronic communications by an employee. Indeed, the court ruled that an employer may never read e-mails exchanged with an employee’s personal attorney, regardless of what the policy provides. The New Jersey Supreme Court’s decision also provides employers with guidance regarding the necessary elements of an effective and enforceable Internet and e-mail use policy. Thus, all employers should review their existing policies to ensure that these policies are carefully tailored to protect the employer’s legitimate business interests.

In Stengart v. Loving Care Agency, the plaintiff, a former employee of Loving Care, was provided a company-owned laptop computer for business use, which she returned to her employer when she resigned from her employment. Stengart subsequently filed suit against the employer alleging violations of the New Jersey Law Against Discrimination (NJLAD). In connection with the defense of the lawsuit, the employer hired an expert to create forensic images of the contents of the laptop’s hard-drive and discovered a number of e-mail communications between Stengart and her attorneys, which had been exchanged via the plaintiff’s personal Web-based password protected e-mail account.

Upon learning that the employer’s attorney had retrieved personal e-mail communications between the plaintiff and her attorneys, the plaintiff filed an emergent application seeking the immediate return of the e-mails, arguing that the e-mails were protected by attorney-client privilege. Relying upon the employer’s Electronic Communications Policy, the employer claimed it retained the right to “review, audit, intercept, access, and disclose all matters on the company's media systems and services at any time, with or without notice,” which included the personal e-mails between Stengart and her attorneys that had been transmitted through a personal e-mail account and saved on the hard drive of the company’s laptop. Although the trial court denied the plaintiff’s application, the Appellate Division held that the employer’s policies did not give it the right to access e-mails shared between Stengart and her attorneys as the employer had no legitimate business interest in accessing Stengart’s personal e-mails.

In affirming the appellate court’s ruling, the New Jersey Supreme Court held that not only were the plaintiff’s e-mails with her attorney protected by the attorney-client privilege, but the employer’s e-mail and Internet policy was ambiguous. Although the employer’s policy provided that “[e]-mail and voice mail messages, internet use and communication and computer files are considered part of the company's business and client records,” the New Jersey Supreme Court found that an ambiguity existed in the policy because the policy expressly acknowledged that “occasional personal use” was permissible. Furthermore, the employer never disclosed that it would save personal e-mails on its hard drive or monitor the contents of personal e-mail.

While the e-mails at issue in Stengart involved attorney-client communications, this holding is important for all employers since it highlights the critical components of an e-mail policy. To overcome an employee’s expectation of privacy in e-mails, the employer must develop and implement a carefully crafted, detailed and specific Internet and e-mail use policy to ensure that it retains the right to monitor and read e-mails sent on its computers. Employers must also provide employees with express notice that messages sent or received on a personal, Web-based e-mail account will be subject to monitoring if company equipment is used to access the account. Moreover, the policy must expressly and unequivocally identify the scope of monitoring of employee e-mail use.

An appropriate e-mail and Internet use policy should clearly: (1) notify employees of what information is stored in the employer’s computer systems and subject to retrieval and review; and (2) identify personal e-mail messages saved in such systems as company property. Human resource professionals should work closely with their information technology professionals to utilize filters and blockers that limit access to various websites, including, but not limited to, personal Web-based e-mail accounts. Employers are strongly advised to review their current e-mail and Internet policies to ensure that the company retains the right to monitor, inspect and read any and all electronic communications transmitted from and/or stored on its computers.

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For more information, please contact:
Catherine P. Wells ¦ Member of the Firm ¦ Phone (973) 530-2051 ¦ Email cwells@wolffsamson.com
Margaret O'Rourke Wood ¦ Member of the Firm ¦ Phone (973) 530-2063 ¦ Email mwood@wolffsamson.com
Denise J. Pipersburgh ¦ Associate ¦ Phone (973) 530-2090 ¦ Email dpipersburgh@wolffsamson.com