Workplace Email Policies
Workplace email policies can protect companies and Lead to waiver of privileges that would otherwise protect employees’ communications.
You are a manager or owner of a small company, which has just been sued by a former employee for sexual harassment, retaliation, invasion of privacy and intentional infliction of emotional distress. Company employees each have access to a networked company computer for which they have their own private passwords. In investigating, you discover that, during the workday, the former employee sent an email to her attorney asking for legal advice about bringing her claim, and that she deleted the email from her computer after sending it.
The next time the employee sees her email is when it is marked as an exhibit to her deposition in the lawsuit. Her lawyer instinctively objects on the basis that the email is an attorney-client communication. Is she right?
This is the issue recently decided by the Third District Court of Appeal in Holmes v. Petrovich Development Company (2011) 191 Cal.App.4th 1047. The lawsuit arose out of email communications between plaintiff and her boss over plaintiff’s plans to take a pregnancy leave of absence. The boss’s negative reaction to plaintiff’s request, coupled with sharing the email correspondence with other company employees, prompted plaintiff to resign from the company and bring suit.
The company’s Employee Handbook specified that the company’s computers should only be used for company business and that employees were prohibited from sending or receiving personal emails on company computers. The Handbook expressly stated, “email is not private communication, because others may be able to read or access the message. Email may best be regarded as a postcard rather than a sealed letter.” The Handbook also stated that the company would periodically monitor its technology resources for compliance with company policy.
After her exchange of emails with her boss and advice from her physician, plaintiff sent an email (using her work computer) to her personal attorney explaining the exchange with her boss, expressing that she felt she was in a hostile work environment, and requesting an appointment to discuss her legal rights regarding discrimination based upon pregnancy. After leaving the company and filing suit, her emails were used during her deposition and later, as evidence in support of a motion for summary judgment. Plaintiff’s counsel objected to the use of the emails on the basis of the attorney-client privilege.
In arguing that the company had no right to use the emails, plaintiff cited California Evidence Code section 917, which specifies that certain communications, including between attorney and client, are presumed to be confidential, and that the communication does not lose its privileged character merely because it is communicated by electronic means or because there are third persons that have access to the delivery, facilitation, or storage of the electronic content of the communication. Thus, plaintiff argued, her communication with her attorney was presumed to be privileged and that the privilege was not lost merely because it was communicated through an email. In addition, plaintiff argued that because she had a private password to protect access to her computer and because she erased the emails after sending them to her attorney, she had a reasonable expectation that her communications would retain a privileged status.
Given the plaintiff’s election to communicate with her attorney from her company computer, as opposed to a home computer, on an email server in which unknown persons would be involved in the delivery of her messages, the court concluded that the communication was “akin to consulting her attorney in one of defendant’s conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by [defendant] would not be overheard.”
While lawyer-client, doctor-patient and priest-congregant communications generally will remain privileged, that expectation will not apply to employees’ communications from a company computer, at least not when the company has an express policy that there is no expectation of privacy when using the company email server. Employers will be well-served to maintain clear and explicit email use policies in the Employee Handbook. Such policies not only may allow access to important employee emails, but also may help protect the company from claims that email monitoring is improper.