Workplace Privacy Wars: A Different Ruling on Use of Employer E-Mail

By Brent A. Cossrow

In a widely discussed decision issued last year, Stengart v. Loving Care Agency, the New Jersey Supreme Court held that an employee had a reasonable expectation of privacy in her e-mail communications exchanged with her personal attorney through her web-based, password-protected, Yahoo! e-mail account using her employer’s computer.

Recently, in Holmes v. Petrovich Development Co., LLC, a California appellate court ruled that e-mails sent by an employee to her attorney from a company computer were not privileged. According to the appellate court’s opinion, plaintiff Gina Holmes started working for Petrovich Development Company in June 2004. Holmes later told her supervisor, Paul Petrovich, that she was pregnant.

Holmes’ subsequent communications with Petrovich regarding her pregnancy left her feeling as though her position was in jeopardy.  Petrovich shared his communications with Holmes with his colleagues, and when Holmes learned this she felt as though her rights were violated.

Were employee privacy rights invaded?

Gina Holmes then e-mailed her personal attorney using her employer’s e-mail system and computer. After sending these e-mails, she deleted them from her work computer. She then quit her job and sued the company, alleging claims for hostile work environment harassment, constructive discharge, violation of her privacy rights, retaliation and intentional infliction of emotional distress. The trial court granted the company’s motion for summary adjudication against the claims for hostile work environment, retaliation and constructive discharge.

The trial addressed whether Petrovich invaded Holmes’ privacy rights and constituted intentional infliction of emotional distress. Petrovich offered the e-mails between Holmes and her attorney to show she had not suffered emotional distress and, instead, filed the lawsuit on her attorney’s advice.

The jury returned a defense verdict, which was affirmed by the appellate court. It rejected several arguments made by Holmes that the e-mails should not have been allowed into evidence because they were privileged communications. First, Holmes argued that she believed that she protected her communications by deleting the e-mails after they were sent.

Second, even though Petrovich had policies stating that (1) company computers were for company business only, (2) the company would periodically monitor its computers to make sure users were complying with the policy; and (3) employees had “no right of privacy ” with respect to any personal use of company computers, Holmes argued that Petrovich did not access or audit employee use.

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What the California Appellate Court said

In rejecting these arguments, the appellate court held that Holmes’ “belief was unreasonable because she was warned that Petrovich would monitor e-mail to ensure employees were complying with Petrovich’s policies, which informed Holmes she had no expectation of privacy in any messages she sent through Petrovich’s computer.” Distinguishing Stengart v. Loving Care, the appellate court held:

When Holmes e-mailed her attorney, she did not use her home computer to which some unknown persons involved in the delivery, facilitation, or storage may have access. Had she done so, that would have been a privileged communication unless Holmes allowed others to have access to her e-mails and disclosed their content. Instead, she used defendants’ computer, after being expressly advised this was a means that was not private and was accessible by Petrovich, the very person about whom Holmes contacted her lawyer and whom Holmes sued. This is akin to consulting her attorney in one of defendants’ conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by Petrovich would be privileged.”

The conclusion in Holmes can be harmonized with Stengart, which is good news for employers. The key difference between these two cases is that Stengart involved the employee’s personal, Internet-based and password protected e-mail account. In contrast, the e-mail account at issue here in Holmes was the employer’s e-mail account and system. Consequently, while there may arguably be a greater expectation of privacy in the use of a personal e-mail account, there is a lesser expectation of privacy where the employee uses the employer’s e-mail account.

When employees resign to join competitors, it is not uncommon for employers to review the former employees’ workplace computers to determine whether trade secrets have been taken, restrictive covenants have been breached, or whether statutes like the Computer Fraud & Abuse Acthave been violated.

Although these issues were not squarely reviewed by the the California Appellate Court, the decision is notable with these issues in mind.

This was originally published on Fisher & Phillips Non-Compete and Trade Secrets blog.

Brent Cossrow is an associate in the Philadelphia office of the law firm Fisher & Phillips. In addition to counseling businesses on a wide range of employment matters, Brent maintains a particular practice focus on issues arising out of the movement of employees between competing companies. He also has counseled clients on how to design and implement "best practices" with respect to the management and retention of electronic information.

Contact him at bcossrow@laborlawyers.com.

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