Employees have an expectation of privacy in email sent from company laptops? Yes, a NJ court says.

A New Jersey appeals court has determined that an employee who used a company owned laptop to send email messages to her lawyer from her Yahoo account had an expectation of privacy in those messages, even though the employer had an electronic communications policy that stated that all communications sent from or using company equipment and facilities were property of the employer. Copies of the employee’s messages were recovered from the laptop through forensic analysis after the employee left the company’s employ.

The court had harsh words for the employer’s electronic communications policy:

A policy imposed by an employer, purporting to transform all private communications into company property — merely because the company owned the computer used to make private communications or used to access such private information during work hours — furthers no legitimate business interest. When an employee, at work, engages in personal communications via a company computer, the company’s interest is not in the content of those communications; the company’s legitimate interest is in the fact that the employee is engaging in business other than the company’s business. Certainly, an employer may monitor whether an employee is distracted from the employer’s business and may take disciplinary action if an employee engages in personal matters during work hours; that right to discipline or terminate, however, does not extend to the confiscation of the employee’s personal communications.

The court ordered that all emails exchanged by plaintiff and her attorney in the possession of either the company, the company’s attorneys, or their agents or employees be turned over to plaintiff, that all these emails be deleted from any computer hard drives upon which they were stored, and that the trial court consider whether the company’s law firm must be disqualified.

In this case there was no evidence that the employee had read, understood or agreed to the company’s electronic communications policy that the employer attempted to enforce against her.  If the employer had documented her agreement to the policy, and it was clear that she agreed and understood the policy, perhaps the result may have been different.

Stengardt v. Loving Care Agency, Inc., Docket No. L-858-08 (N.J. App. Div. May 13, 2009).

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