Employers should never underestimate the importance of
having a clear policy about the use of company computer and e-mail
systems. A California Court of Appeal recently concluded in Holmes v. Petrovich Development Company, LLC,
2011 WL 117230 (Jan. 13, 2011) that an employee's personal e-mails to
her attorney were not privileged, and therefore subject to employer
review, because the employee had no reasonable expectation of privacy
when using her employer's computer for personal matters not related to
company business. The Holmes case illustrates that having a
comprehensive policy concerning the use of company technology resources
(e.g., computers, e-mail systems, PDAs, etc.) can be the difference in
winning or losing litigation brought by a former employee.
In Holmes, the plaintiff Gina Holmes was hired
as an executive assistant to Paul Petrovich, the owner of Petrovich
Development Company. At the time of her hiring, Holmes received an
employee handbook, which she admitted to reading and signing. Among
other things, the employee handbook contained provisions that clearly
spelled out company policy concerning the use of company-owned
technology resources. Holmes was specifically warned that (1) company
technology resources should only be used for company business; (2)
employees were prohibited from either sending or receiving personal
e-mails; (3) employees who use the company's technology resources to
create or maintain personal information or messages have no right of
privacy with respect to that information or message; (4) e-mail is not
private, and should be thought of as "a post card rather than a sealed
letter"; and, (5) the company had the right to inspect all files or
messages at any time for any reason at its discretion.
Within weeks of being hired, Holmes informed Petrovich
that she was pregnant. Holmes and Petrovich exchanged a series of
e-mails concerning Holmes' maternity leave. After Petrovich became
concerned that Holmes was going to resign, he forwarded their e-mails
to the company's human resources managers and in-house counsel. After
further discussion, Petrovich and Holmes appeared to have resolved the
maternity leave issue. Later that day, however, Holmes took the
advice of her doctor and decided to consult an attorney. Using her
company computer and e-mail account, Holmes sent a series of personal
e-mails to an employment attorney explaining that she believed she was
"officially working in a hostile environment" and wanted to find out
what rights, if any, she had under the law.
Shortly thereafter Holmes resigned and sued Petrovich
and his company alleging harassment, retaliation, wrongful termination,
invasion of privacy and intentional infliction of emotional distress.
The defendants succeeded in getting all of Holmes' claims dismissed
except for her claims of invasion of privacy and intentional infliction
of emotional distress. At trial, Holmes lost on both of her claims.
On appeal, Holmes argued that the trial court should not have allowed
the defendants to use her e-mails to her attorney as evidence, arguing
that those e-mails were privileged attorney-client communications.
Holmes argued that she thought her personal e-mail would be private
because she had used a private password on her company computer, and
because she had deleted the e-mails after she sent them.
The Court of Appeal rejected Holmes' arguments,
concluding that the e-mails were not private. The Court found that it
was unreasonable for Holmes to believe otherwise, given the clear
warnings she had received that the company would monitor e-mails to
ensure compliance with company policy, and because she had been
expressly warned that she had no expectation of privacy in personal
information or messages created or maintained on company technology
resources. The Court analogized Holmes' use of her employer's computer
and e-mail account to communicate with her attorney as being "akin to
consulting with her attorney in one of [her employer's] conference
rooms, in a loud voice, with the door open, yet unreasonably expecting
that the conversation overhead by Petrovich would be privileged." In
other words, because Holmes had no reasonable expectation of privacy in
her e-mails, her communications to her attorney could not be deemed
privileged. As a result of the company's detailed policy, Petrovich
and his company were able to use Holmes' e-mails against her and
ultimately prevail in the case.
Significantly, the Court also rejected Holmes' reliance on Stengart v. Loving Care Agency, 990 A.2d 650 (N.J. 2010),
in which the New Jersey Supreme Court found that an employee did have a
reasonable expectation of privacy in her e-mail communications to her
attorney because her use of a personal web-based e-mail account (e.g.,
Hotmail, Yahoo) from her employer's computer was not clearly covered
by her company's policy, and because her e-mails contained a standard
warning that the communications were personal, confidential,
attorney-client communications. The Holmes Court concluded that the Stengart decision was distinguishable, and therefore inapplicable, based on the unique facts of that particular case.
The Holmes decision should serve as a wake-up
call to employers. Simply having a general policy in an employee
handbook concerning the use of company computers is not enough.
Employers need to have a clear and detailed policy concerning the use
of all company-owned technology resources, including computers, e-mail
systems, facsimile machines, cell phones, and PDAs. Employee handbooks
should detail exactly what is - and what is not - acceptable with
respect to the use of company-owned technology resources. Employees
should be expressly told: (1) not to use company-owned computers for
personal matters; (2) that they do not have expectation of privacy in
the information or messages that they create or maintain on
company-owned technology resources, including web-based e-mail accounts;
(3) all information and messages are stored on hard drives that can be
retrieved by the company; and (4) the company reserves the right to
monitor and read information or messages created by its employees.
In this Digital Age, it is critical that employers
create, maintain and administer a comprehensive policy concerning the
use of company-owned technology resources.
For more information, please contact Terrence M. Schwab, Esq. at 617-218-2047.
A copy of the Holmes v. Petrovich Development Company, LLC decision can be accessed at http://www.courtinfo.ca.gov/opinions/documents/C059133.PDF)
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