United States: New Jersey Appellate Court Provides Guidance On How Company Email Policies Should Be Crafted

In light of a recent New Jersey appellate court decision, employers may want to review and update company email policies to ensure that employees are properly made aware that employers have the right to access and review certain private emails that may be generated through a company-sponsored computer system. In Stengart v. Loving Care Agency, Inc.,1 the New Jersey Superior Court, Appellate Division, clarified how an employer should craft email policies to ensure that employees understand that, while they may consider certain emails to be private, the employer nonetheless retains the right to access the materials by virtue of the employee's use of company technology.

The Stengart case appears to highlight the old adage that "bad facts make bad law." In this case, the court ruled that the plaintiff's former employer had no right to access private emails that the plaintiff, a former executive, had exchanged with her lawyer through the use of a company-issued computer—that were actually exchanged through the plaintiff's personal email account. The decision could be read as a mere reaffirmation of the well-established privilege of confidentiality of attorney-client communications that has been held as inviolate in New Jersey. However, a closer examination of the court's opinion may provide employers with a wake-up call to craft email policies carefully, so employees are aware that, regardless from which account emails may be generated, the employer may retain the right to review such materials—and possibly claim a proprietary interest to such emails—after an employee has left the company's employment.

Case Summary

The plaintiff, Marina Stengart, was executive director of nursing for Loving Care, a home healthcare provider, until she resigned her employment in January 2008. Shortly after her resignation, she filed a state court lawsuit, alleging violations of the New Jersey Law Against Discrimination ("NJLAD"). In her complaint, she claimed that she was the victim of sexual harassment and was constructively discharged by her former employer.

During her employment, the plaintiff was provided with the use of a company-owned laptop and a work email address. Before leaving her job at Loving Care, she communicated with her attorneys about her anticipated lawsuit against the company. In doing so, she used the company-issued laptop to communicate with her lawyers, but all messages were sent through her personal Yahoo Internet email account, which was password-protected.

Subsequent to the filing of the plaintiff's lawsuit, Loving Care created a "forensic image" of the hard drive of the plaintiff's former laptop. In reviewing these materials, an attorney representing the company in the sexual harassment lawsuit discovered the numerous communications between the plaintiff and her attorneys. Eventually, the plaintiff learned that not only did her former employer have access to such emails, but such emails were also in fact reviewed by the former employer's counsel in the course of responding to discovery requests from the plaintiff in her ongoing sexual harassment case. Plaintiff's counsel demanded the immediate return of all copies of the emails, which plaintiff argued were protected attorney-client communications.

The New Jersey Appellate Division rigorously examined the former employer's electronic communications policy, and found it to be ambiguous in how it advised employees that the company was retaining a right to claim a proprietary interest in the emails circulated using its computer equipment. The appellate court cited language in the company's electronic communications policy—included in the company's handbook—alerting employees that emails on company computers were considered "part of the company's business and client records," and not "private or personal" to an employee. However, a key to the court's decision was a policy provision that "occasional personal use is permitted." The court in its opinion concluded that the occasional allowance of the use of personal emails could have lead an employee to reasonably believe that not every message was considered to be company property by the employer. The court also said there was further ambiguity in the policy because the policy referenced the email system as the company "email system," which the court concluded could have reasonably been interpreted by employees to refer only to the company's work-based system and not to an employee's private email account that was password-protected but accessible through company computers. Because of such language, the court felt that the policy as written did not make it unreasonable for employees to believe that they still retained some expectation of privacy in such emails.

What This Means For New Jersey Employers

The Stengart case is significant. It is the first occasion when a New Jersey appellate court has provided guidance on how electronic communications policies should be drafted. One lesson from Stengart is that employers should carefully craft their electronic communications policies in a nonambiguous fashion to alert employees that, even with the allowance of some private usage, the employer retains the right to monitor these emails and potentially claim them to be their property if a legitimate business interest can be established for the need to obtain such an interest. It is also important to note that even after Stengart, employers have the right to implement such policies to ensure that employees do not abuse computer systems through excessive use that interferes with the employee's duties of performing the job during work hours. Thus, the decision may leave open the possibility, where a business interest can be established, that an employer may still retain the ability to claim a proprietary interest in emails. However, after Stengart, employers can no longer presume that such materials will be their property simply because they were generated through the company's computer system. Now is the time for employers to reassess their electronic communications policies, so that such policies are not subject to the same claims of ambiguity that befell the employer's policy in Stengart.

Footnote

1. Stengart v. Loving Care Agency, Inc., 973 A.2d 390 (N.J. Super. Ct. App. Div. 2009).

If you have any questions regarding this case, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions