By Eric B. Meyer
Let’s assume that your company — as many do — has a computer-use policy, which underscores that electronic communications sent over your network are not private and the company has the right to monitor all such electronic communications.
Under federal law, communications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged. What if a husband and wife who work for your company email each other over your network? Are these emails subject to the marital privilege, or does the computer-use policy eviscerate it?
This became an issue in the hotly-contested ongoing “Deepwater Horizon” oil-spill litigation. You can view a copy of the court’s opinion here.
Marriage schmarriage — a good policy controls
British Petroleum had a policy very similar to the one described above. As part of the oil-spill litigation, BP turned over a series of emails between a BP drilling engineer who worked at the site of the Deepwater Horizon drilling-rig explosion off the coast of Louisiana and his wife, another BP employee. In anticipation of his deposition, the engineer, who planned to take the Fifth Amendment in response to all questions, sought to invoke the marital-communications privilege over each of the emails to his wife.
As to why, in the face of a company computer-use policy, the martial privilege should attach to the emails to his wife, the engineer argued four points:
- BP permitted the personal use of company email;
- It did not indiscriminately or randomly monitor its employees’ emails;
- No third party other than BP had a right to access Mr. Morel’s email account; and
- BP’s notification statements were insufficient to overcome the presumption of confidentiality accorded to marital communications.
Essentially, the engineer contended that it did not matter what BP’s policy said because BP did not regularly enforce it. The court, however, was not persuaded. It determined that an employee cannot reasonably expect that work emails will remain private, provided that the employer’s policies satisfy three elements:
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- the employee’s electronic communications are not private;
- they may be monitored and accessed by the employer; and
- they are subject to production by a subpoena.
Accordingly, the court denied the BP engineer’s marital-communications-privilege assertion.
Is your policy (and practice) good enough?
This case was decided by a federal court in Louisiana; it is not binding on employers in Pennsylvania, New Jersey, and Delaware. Still, it is instructive and a good starting point for computer-use policy.
- I like the “may monitor” reservation of rights versus “will monitor.” The former offers flexibility, while still warning employees that emails are subject to search at any time. The latter is very rigid and, if implemented unevenly, may lead to discrimination issues, among others. It also could create problems for employers if, by monitoring employee emails, an employer learns of a workplace issue which it then must remedy, yet fails to do so.
- Mention the Computer Fraud and Abuse Act (“CFAA”). The CFAA is becoming a very trendy tool for employers in employment-related actions. While the landscape is still very much unchartered, a policy statement warning employees about the CFAA and that violations of the computer use policy could lead to criminal/civil prosecution/liability could help tip the scales in favor of the employer if litigation should arise.
- A computer-use policy — or any handbook policy for that matter — is not worth the paper it’s printed on if enforcement of the policy is uneven. For example, don’t have a policy banning personal email use if, in fact, everyone at the company sends personal emails and the company, in practice, condones it. The only thing worse than having no policy at all, is having a policy and then disregarding it entirely.
Certainly, if you have not updated your computer-use policy in a while (which means you probably don’t have a social-media policy either), now is as good a time as any to do that.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.