New Jersey Supreme Court Expands Workplace Privacy Rights

A 2010 New Jersey Supreme Court decision has made a clear statement about privacy rights in the workplace and electronic communications. In a unanimous decision, the court held that an employee’s reasonable expectation of privacy extended to e-mail communications with her attorneys using a company computer. The case involved an employment discrimination lawsuit that alleged a hostile work environment, retaliation and harassment in violation of the New Jersey Law Against Discrimination (NJ LAD).

The plaintiff in Stengart v. Loving Care Agency, Inc., was an executive who, like many employees, often used a company-issued laptop for personal communications via a password-protected, Internet-based e-mail account. But her employer’s attorneys had access to the hard drive of the laptop during the discovery phase of litigation, and they were able to review the content of personal messages that had been automatically saved as temporary Internet files by the web browser. They used the information to help them prepare their case, and did not disclose their knowledge of the e-mails to plaintiff’s counsel until months later.

Loving Care maintained that the messages were fair game because of because of an electronic communication policy set out in its employee handbook: “E-mail and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records. Such communications are not to be considered private or personal to any individual employee.”

Stengart’s lawyers countered that the e-mails were protected because of the legend that appeared at the bottom of each e-mail they sent: “This message may be an Attorney-Client communication, and as such is privileged and confidential. If the reader of this message is not the intended recipient, you are hereby notified that you have received this communication in error, and that your review, dissemination, distribution, or copying of the message is strictly prohibited.”

What Is the Point of an Attorney-Client Privilege?

When major issues come before appellate courts, organizations with a stake in the outcome often seek to comment to the court in the form of amicus (“friend of the court”) briefs. In this case, the New Jersey State Bar Association felt compelled to defend the special protections extended to any communication between a client and his or her lawyer. The American legal system has long recognized that when people know that anything they say to their lawyer is confidential, they are likely to receive better representation. At the same time, the public is better served by more complete disclosure.

The NJSBA expressed concern about encroaching threats on the ability of clients to exchange information with counsel because of the increasing role of technology in legal practice, and it expressed particular concern about inadvertent or casual waivers of the privilege. Both the National Employment Lawyers Association of New Jersey and the Association of Criminal Defense Lawyers of New Jersey advocated for a broader interpretation of employee privacy rights, arguing that employers should only be able to invade those rights incident to the assertion and protection of legitimate business interests.

The New Jersey Supreme Court sided with the plaintiff, pointing out that the company policy simultaneously provided that e-mails are not to be considered “personal” to the employee while acknowledging that occasional “personal” use of e-mail was permitted. The court also strongly defended attorney-client confidentiality as a “venerable privilege” that has been “enshrined in history and practice.”

But the most important factor was the particular circumstances of the communications in question. The court was convinced that Stengart had a reasonable expectation of privacy because she used a password-protected account that was distinct from the company e-mail system, and saw no reason to conclude that she had knowingly disclosed information to her employer given her personal knowledge of computer protocols such as temporary Internet files.

Employment Law: A Frontier for Privacy Rights

What makes this decision most interesting to many observers is the context of the communications: the workplace. As information-based jobs have multiplied in the economy over the past twenty years and traditional officing concepts have evolved, employee privacy issues have mushroomed along with the amount of data collected and archived by employers. Employees must not only be careful about in-house e-mail communications – they must also be vigilant about the sort of things they post of Facebook, LinkedIn and other social networking sites. Internet presence is an even greater concern as employees change careers and are scrutinized by potential employers.

The Electronic Privacy Information Center (EPIC), which monitors a wide range of issues related to personal data in a transparent age, identifies a range of privacy-invasive practices in the workplace. Drug testing requirements, closed-circuit video recording, filtering of Internet availability, and keystroke logging were all virtually unheard of to past generations of workers.

Obviously, employers need to address and investigate security risks and sexual harassment claims, and have a vested interest in reviewing employee performance. But they must also be careful not to diminish employee morale or destroy productivity with excessive scrutiny.

If you have been a victim of sexual harassment or have otherwise been subjected to discrimination in the workplace, contact an experienced employment law attorney to discuss your legal rights and remedies.