New Jersey Balances Employee Privacy Rights When Using Employer Provided Computer
As technology becomes more integrated at work and at home, the lines between an employee’s personal privacy rights and company policy blur. The result is an increase of focus on how to balance an employee’s ability to maintain his or her privacy rights with an employer’s ability to maintain an efficient workplace.
One struggle regarding these conflicting rights took center stage before the New Jersey Superior Court in Stengart v. Loving Care Agency et al., 408 N.J. Super. 54, 973 A.2d 390 (App. Div. 2009). In the case, Ms. Stengart, an employee of Loving Care Agency, Inc. was given a lap-top computer and a company email address from her employer. While employed by Loving Care, Ms. Stengart used the laptop computer to access her private, web-based, password-protected, email account (supplied by Yahoo!) and communicate with her attorney regarding an anticipated lawsuit against her employer. After Ms. Stengart resigned and filed the suit against her employer, the company developed a forensic image of the laptop’s hard drive that revealed confidential emails between Ms. Stengart and her attorney regarding the lawsuit. The employer sought to use those emails during the lawsuit ad justified the recovery and use of the private email messages as falling under the company’s electronic communications policy. Ms. Stengart objected to the use of the emails by arguing that the emails were protected communications under the attorney/client privilege. In deciding the matter, the Superior Court examined the conflict between an employer’s workplace regulations and policies and the privacy rights of employees.
In its analysis, the Superior Court recognized that an employer’s business interest is less clear in situations where the employer’s computer policy permits “occasional personal use” and an employee has a reasonable expectation of privacy in the permitted personal use. The Superior Court noted that this age of technology, where electronic communications and transactions are frequent, makes it difficult for an employee to segregate personal business and company transactions. The Superior Court thus recognized that an employee has a reasonable expectation of privacy in accessing password protected sites with company property. With the above principles in mind, the New Jersey Superior Court found that Ms. Stengart had a reasonable expectation of privacy in her communications with her attorney via her private, password-protected, email account.
Although the Superior Court was clear in protecting the attorney/client privileged emails to Ms. Stengart’s attorney, this case does not provide a clear directive with respect to other “private” activities by an employee with an employer’s resources. In fact, the Stengart court noted that the inquiry regarding how far an employer can reach into an employee’s private transactions with company resources is a question better answered by the Legislature. Thus, this case contains important lessons for both employers and employees. For employers, it emphasizes the importance of maintaining and communicating strong and clear computer policies to employees regarding personal use of the employers’ time and resources. For employees it is a keen reminder that personal activities on computers are better limited to home computers, as such use and communications are not as “private” as the employee may believe.
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