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Policing Workplace e-Mail Use

By Fernando M. Pinguelo and Laura J. Tyson

On-the-job Internet surfing has become a problem that employers can no longer ignore. A recent Office of Inspector General investigation, for example, revealed that senior-level SEC staff, including an attorney, used their workplace computers to view online pornography for up to eight hours per day during the period of time that led this country's biggest economic meltdown since the Great Depression. See, www.washingtonpost.com/wp-srv/politics/documents/SECPornSummary.pdf. The workplace Internet-abuse epidemic is not restricted to massive operations, either. Small companies express concerns that their staff wastes valuable office time tagging photos in Facebook and sending personal e-mails instead of doing work. Yet the blurry divide between prolonged, purely personal workplace Internet (ab)use and the occasional, legitimate need to use temporarily a company computer to communicate with a bank, an online vendor, or an attorney, continues. A company's decision on where to draw the line on personal use of workplace computers poses a great challenge to employers, and recent court rulings do not make the decision and its enforcement any easier.

Under what circumstances do employees who use a workplace computer to communicate with their attorneys waive the attorney-client privilege that would normally attach to such a communication? A recent ruling from New Jersey addressed this question. In Stengart v. Loving Care Agency, Inc., 2010 N.J. LEXIS 241 (N.J. March 30, 2010), the Supreme Court of New Jersey ruled that an employee's private, password-protected e-mails containing communications with her attorney remained privileged, despite the existence of a detailed, written workplace technology policy that expressly placed employees on notice that the employer could intercept and review communications made using the employer's computers at any time. The issue of how the attorney-client privilege applies to workplace e-mails remains murky in many jurisdictions, and this New Jersey ruling, and a few others, provide some much-needed guidance for employers and employees alike.

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