Employment PFA

Most employees just accept the fact that their employer can access any content that is on a company computer, including employees personal emails and other personal information. But, is that the law? A growing number of courts are recognizing that employees have some expectation of privacy with respect to their personal content on company computers. Some recent decisions have held that employers do not own and cannot access their employees personal emails not even when those emails were sent on a company computer.

Marina Stengart v. Loving Care Agency, Inc. is a workplace privacy case that was decided on June 26, 2009. Marina Stengart worked as an Executive Director of Nursing at Loving Care Agency, Inc. Loving Care provided Stengart with a company computer and an email address to accomplish her work duties. Loving Care had an electronic communications policy which stated that emails, internet use and computer files are considered the companys property and are not to be considered private or personal to any individual employee. The policy also stated that the company had the right to review, audit, intercept, access, and disclose all matters on the companys media systems and services at any time, with or without notice.

Stengart used her company computer to email her attorneys about filing a discrimination lawsuit against Loving Care. But, Stengart did not use her company email address. She emailed her attorneys with her personal, password protected Yahoo email account while using her company computer. Stengart resigned from her employment and sued Loving Care for discrimination. Loving Care then searched Stengarts company computer and, pursuant to its electronic communications policy, read the emails Stengart exchanged with her attorneys. Stengart angered by Loving Cares reading of her personal emails, asked the Court to decide if Loving Care had the right under its electronic communications policy to read emails she sent to her attorneys through her personal email account on her company computer.

The Stengart Court rejected the notion that an employees personal emails become company property simply because the company owns the computer, claiming that a company computer in this setting is little more than a file cabinet: “Property rights are no less offended when an employer examines documents stored on a computer as when an employer rifles through a folder containing an employees private papers or reaches in and examines the contents of an employees pockets; indeed, even when a legitimate business purpose could support such a search, we can envision no valid precept of property law that would convert the employers interest in determining what is in those locations with a right to own the contents of the employees folder of private papers or the contents of his pocket.” The Court ruled against Loving Care, concluding that an employer cannot transform all private communications into company property — merely because the company owned the computer used to make the private communications or used to access such private information during work hours.

Marina Stengart asked the Court if her employer had the right to view her personal emails. Bonnie Van Alstyne took the workplace privacy notion a step further when she sued her former employer for accessing her personal emails. Bonnie Van Alstyne worked as a Vice President at Electronic Scriptorium Limited, a small data conversion company owned and operated by Edward Leonard. Van Alstyne had a company email account, but she occasionally used her personal AOL email account to conduct business. Van Alstynes employment was terminated and she filed a sexual harassment lawsuit against the company. During the discovery process, Van Alstyne learned that Edward Leonard accessed her personal email account both during and after her employment. Leonard produced 258 emails he had printed from Van Alstynes personal email account.

Van Alstyne filed a separate lawsuit against Leonard, Bonnie Van Alstyne v. Electronic Scriptorium Limited, et al. Her lawsuit alleged that Leonard violated the Stored Communications Act when he accessed her personal email account and viewed her emails. The Stored Communications Act creates criminal and civil liability for any individual who intentionally accesses without authorization a facility through which an electronic communication service is provided or intentionally exceeds an authorization to access that facility and obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system. In other words, the Stored Communication Act prohibits an individual from, among other things, intentionally accessing other peoples stored emails, voicemails, text messages, etc. without permission. A jury found that Leonard violated the Stored Communications Act and awarded Van Alstyne $250,000 in compensatory and punitive damages and more than $136,000 in attorneys fees and costs.

The law is changing. Courts are recognizing that employees have a right to privacy in their personal emails even when those emails are sent on company computers and even when company policy says otherwise. But, both Marina Stengarts and Bonnie Van Alstynes employers read their personal emails which gave their employers valuable defensive information and severely prejudiced Stengart and Van Alstyne in their pending lawsuits. A lawsuit cannot unring that bell. And, Stengart and Van Alstyne were forced into lengthy, costly legal battles to enforce their privacy rights. It is encouraging that courts are recognizing employee privacy rights and giving employees remedies when those rights are violated. However, the best course of action is to keep your personal email and your company computer separate thereby eliminating any possibility that your employer will view your personal emails.