Jan. 19, 2011 at 1:22 PM ET
If you're planning on suing your employer, don't use your work e-mail to discuss it with your lawyer, because a California Court of Appeals has ruled that correspondence is not considered confidential, nor privileged.
If you haven't heeded the warnings before, maybe it's time to do so now and stop treating company e-mails like your personal e-mail. We know you use it to forward stupid jokes and videos, to flirt with whoever and to discuss extracurricular activities (which may very well be volunteer duties the company approves). But don't expect those e-mails to be private, not if the company has specific policies and practices pertaining to e-mail usage and you've agreed to them.
In its recent ruling, the Third Appellate District Court (Sacramento) agreed 3-0 to uphold a previous decision against a plaintiff, Gina M. Holmes, who sued her employer, the Petrovich Development Company, after she quit her job on account of "sexual harassment, retaliation, wrongful termination, violation of the right to privacy, and intentional infliction of emotional distress" as a result of discussing the logistics of maternity leave with her boss, who forwarded e-mails in which she revealed private information about her pregnancy.
In this case, the court's 40-page ruling spells out what it thinks about the plaintiff's arguments, including the right to privacy found within company e-mails, some of which Holmes used to communicate with her attorney.
The court reprimands her in no uncertain terms:
Among other things, we conclude that e-mails sent by Holmes to her attorney regarding possible legal action against defendants did not constitute "confidential communication between client and lawyer" within the meaning of Evidence Code section 952. This is so because Holmes used a computer of defendant company to send the e-mails even though (1) she had been told of the company‟s policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had been warned that the company would monitor its computers for compliance with this company policy and thus might "inspect all files and messages . . . at any time," and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages "have no right of privacy with respect to that information or message."
Hear that? "No right of privacy with respect to that information or message." So take heed, especially if you're thinking about taking any legal action against the very employer whose e-mail system you're using.
The court holds that:
An attorney-client communication "does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication."
But when Holmes sent her e-mails, knowing what she did about company policy, it was "akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him. "
This is a fight that will continue, we're sure of that. Holmes tries to get in one last punch to regain some footing (and dignity) in keeping private correspondence private. She submits a new argument (that the court promptly throws out because it's the first time she goes for this particular argument) entitled, "ONE DOES NOT LOSE THEIR [sic] CONSTITUTIONAL RIGHT TO PRIVACY SIMPLY BY WALKING THROUGH THE ENTRANCE OF THE WORKPLACE."
Holmes asserts her constitutional right to privacy over a company handbook; "that an employee has a reasonable expectation of privacy when an employer's technology policy is not enforced; and that an employer violates an employee's right to privacy when he discloses private information about the employee without a legitimate business reason for doing so."
Wired pulls out an example of how the courts have determined that there is privacy, even at work. In a March 2010 decision, the New Jersey Supreme Court ruled that e-mail messages sent and received on personal web-based e-mail accounts, even if accessed from an employer’s computer, were considered private. But here's the caveat, that is also mentioned in the Sacramento ruling: the ambiguity of the company's own language gives reasonable expectation of privacy toward "personal, password-protected, web-based e-mail accounts." And these e-mails, which included correspondence to attorneys, were very clearly marked as personal and confidential, attorney-client communications.
Hot topics, people. Where do you stand on your expectations of privacy within work e-mails?