The So-Called Privacy of Employee Emails

Illustration by Dreamstime
Illustration by Dreamstime

By Eric B. Meyer

Warning: Humblebrag alert.

Reporters call me all the time. It’s a wonder that I can get any work done.

Why, just last week, I was speaking to a reporter about an action recently initiated by current and former employees of the Food and Drug Administration (FDA), alleging that the agency unlawfully monitored their private emails. During our discussion, I mentioned another case — this one called Stengart v. Loving Care Agency — in which the New Jersey Supreme Court held that an employee who emails her attorney from a company computer may have a reasonable expectation of privacy in those emails provided that the employee uses a password-protected web-based email account.

Ah, serendipity! The following day, I read about another case decided last week in which the New Jersey Superior Court reaffirmed that many employee emails are not private. More on this case and a best practice for employers after the jump…

The case of Fazio v. Temporary Excellence, Inc. is chock-full of tortured facts involving Vegas bachelor parties, screwy real-estate deals, and second-degree extortion. Pish-posh. Let’s focus on the part of the opinion that matters here:

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The Court [in Stengart v. Loving Care Agency, Inc.] concluded that the plaintiff “could reasonably expect that e-mails she exchanged with her attorney on her personal, password-protected, web-based e-mail account, accessed on a company laptop, would remain private” and, consequently, that the privilege protected those e-mail messages.

It is true that TEI lacked an e-mail policy. However, unlike the employee in Stengart, plaintiff took no steps whatsoever to shield the e-mails from his employer. Instead, he repeatedly sought legal advice about the negotiation for the purchase of TEI using his employer’s own e-mail system on its own computer equipment, and did not password-protect those communications. Under these circumstances, he had no reasonable subjective expectation of privacy. Accordingly, the court ruled correctly with respect to the e-mails.”

So Stengart proves to be the exception and not the rule.

The lesson for employers: Make sure to have a computer-use policy confirming that employees should have no reasonable expectation of privacy when using company computers or email. Notwithstanding, however, recognize that in some states — like New Jersey — employees will have a reasonable expectation of privacy in emails sent and received on web-based personal email accounts.

Eric Meyer will be leading a group of HR pros in a panel discussion on Social Media in the Workplace – Where is it Today, Where is it Going Tomorrow? at the TLNT Transform conference in Austin, TX Feb. 26-28, 2012. Click here for more information on this event. 

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (, which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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