One More Thing You Shouldn't Do from Your Work Computer...
A recent court decision suggests that your list of "Things not to do from my work computer" should include another item: "Pursue a lawsuit against your employer."
Your list of "Things not to do from my work computer" should already include at least these items:
- Look at porn
- Send off-color jokes to co-workers and friends
- Download/install executable files
- Look for another job
A recent case from the New Jersey Supreme Court suggests that "Pursue a lawsuit against your employer" should be added to this list — though in this case the employee's position was upheld. Here's how it played out:
Ms. Stengart was a nursing manager at Loving Care, which had the typical "appropriate-use policy" regarding employees' activities on their work computers — i.e., that they should have no reasonable expectation of privacy in any communications sent/received using company equipment. Stengart was suing Loving Care for employment discrimination, and she used her work computer to send e-mails to her attorney using her private Yahoo Mail account. As part of the discovery process in the litigation, Loving Care hired a computer-forensics expert to recover all files on Stengart's company-issued laptop. The expert found cached copies of Stengart's e-mails to her attorney, which Loving Care then used in its defense in the litigation.
The court found that Stengart had a reasonable expectation of privacy for these reasons:
- She had a subjective expectation that her e-mails were private because she used a private, web-based and password-protected e-mail program;
- Her expectation of privacy was objectively reasonable because Loving Care's appropriate-use policy didn't address private, web-based e-mail accounts; and
- Her messages were clearly subject to the attorney-client privilege, since they were addressed to her attorney and contained standard warning language at the bottom of each message.
The court went on to hold that protection of the attorney-client privilege was so important that "even a more clearly written company manual — that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee's attorney-client communications, if accessed on a personal, password-protected e-mail account using the company's computer system — would not be enforceable." The court left open the possibility that Loving Care could have disciplined Stengart for spending excessive work time on personal matters, though it still wouldn't have had a right to access the content of her communications.
In sum, this case represents a fairly small inroad on the principle that employees should have no expectation of privacy for any personal activities they conduct on their work computers. If anything, it may encourage employers to bolster their appropriate-use policies to (i) more clearly prohibit the use of company computers to engage in privileged communications with a personal attorney (since companies are not required to allow employees to plan litigation against them during the workday). and (ii) ensure that personal, web-based e-mail accounts are on the list of things that employers have the right to monitor.Categories: Appropriate Internet Use