May 2010 Parking - 9

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. The principal purpose of electronic mail (e-mail) is for company business communications. Occasional personal use is permitted; however, the system should not be used to solicit for outside business ventures, charitable organizations, or for any political or religious purpose, unless authorized by the Director of Human Resources. The New Jersey Supreme Court held that the scope of the policy was unclear: “It is not clear from that language whether the use of personal, password-protected, Web-based e-mail accounts via company equipment is covered. The Policy uses general language to refer to its ‘media systems and services’ but does not define those terms.” The court noted that elsewhere, the Policy prohibits certain uses of “the e-mail system,” which appears to be a reference to company e-mail accounts. Based on its interpretation of the Policy, the court found that “employees do not have express notice that messages sent or received on a personal, Web-based e-mail account are subject to monitoring if company equipment is used to access the account.” The court further observed that the Policy did not warn employees that the contents of such e-mails are stored on a hard drive and can be forensically retrieved and read by Loving Care. Although the Policy declared that e-mails “are not to be considered private or personal to any individual employee,” the court noted that the

Policy acknowledges that “[o]ccasional personal use [of e-mail] is permitted.” The court concluded that “[a]s written, the Policy creates ambiguity about whether personal e-mail use is company or private property.” The court turned to the issue of whether Stengart had a reasonable expectation of privacy in the emails. This standard derives from the common law and the search and seizure clauses of the U.S. and New Jersey Constitutions. Because this case involved private parties only, the court did not use a constitutional analysis. Instead, it focused on the common law tort of “intrusion on seclusion.” The Restatement (Second) of Torts provides that “[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” This cause of action has both subjective and objective components. After reviewing case law from other jurisdictions, the court concluded that Stengart had a reasonable expectation of privacy in the e-mails she exchanged with her attorney on the company laptop. She took steps to protect the privacy of those e-mails and shield them from her employer. She used a personal, password-protected e-mail account instead of her company e-mail address and did not save the account's password on her computer. According to the court, “she had a subjective expectation of privacy in messages to and from her lawyer discussing the subject of a future lawsuit.”

www.npapark.org Parking May 2010

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May 2010 Parking

Table of Contents for the Digital Edition of May 2010 Parking
