Bay Area Employment Lawyer Blog

Communications with employment attorneys are generally confidential. Emails communications are generally confidential. However, beware of these overgeneralizations! If you are an employee with concerns about your employer, and are using your work email on your employer's computer to consult a lawyer, that may NOT be confidential!

In this case, Holmes v. Petrovich Development Company, --- Cal. App. 4th ----, 2011 WL 117230 (Jan. 13, 2011), Ms. Holmes emailed a lawyer about her claims of pregnancy discrimination from her employer's computer, using her work email account, after signing a handbook acknowledging that the employer maintains the right to monitor all electronic communications including computers, which are to be used only for work purposes.

When Ms. Holmes claimed that her communications with the lawyer were confidential, the Court of Appeals practically railed that, "the e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him." The court concluded that there was no reasonable expectation of privacy here, and thus the employer could read and use as evidence in the lawsuit, such communications.

There isn't much more to discuss about this case. It is somewhat of an obvious cautionary tale. Indeed, Ms. Holmes' lawyer, after receipt of the email, warned her that perhaps she shouldn't be doing this, and suggested she delete these emails just in case.

It is worth noting that the case did not involve an employee using her office computer to use her own personal email account. It did not involve an employee who was never warned that computer use at work was monitored. Changes in one or more of these factors might have resulted in the Court finding that Holmes's communications with her lawyer were confidential. Then again, it might not.

The cautionary tale remains the same: if you want something to be confidential (be it an email to a friend, a family member, or a lawyer) just - please - do not use your employer's computer or your work email account. And while we are at it, don't use your employer's blackberry to send private emails. Don't use your employer's cell phone to send text messages that are private. And do remember, that if you wind up in litigation, many electronic gadgets, even your own used in the privacy of your home, do leave trails of evidence that may be recovered during discovery.

Jody LeWitter
February 13, 2011

In the modern world it is easy to slip into writing private emails, texts or other communications and expect that that what you write in confidence will remain confidential. After all, employees should and do have a reasonable expectation of privacy, correct? However, an employee should remember that - especially when you are using an employer-owned cell phone, computer or other devise - this right to privacy can be rather illusory.
In City of Ontario v Quon, 130 S. Ct. 2619 (2010), the United States Supreme Court (analyzing rights under the Fourth Amendment) approved of the City of Ontario's search of employees' text messages (including some sexually explicit messages) sent on city-issued cell phones, where city policy permitted monitoring of city cell phones. This was true even though City supervisors gave mixed messages about whether the City would monitor text messages.
Although this case really focused on U.S. constitutional standards, rather than the State of California's constitutional right to privacy, this case should remind employees that they really should be wary of using employer-issued computers, cell phones or other devises for any personal communications. The courts are generally moving more and more towards finding that rights to privacy may give way to employer's rights to monitor their employees and their equipment. This is especially true if the employer has a known policy permitting search of the devices or explicitly providing that the employer may or will monitor the devices (leading courts to conclude that the right to privacy is not so reasonable under these circumstances).
Employees may end up facing discipline, termination or damaging evidence in a lawsuit. In other words, Quon is one of a line of cases limiting your hard-won right to privacy, so be careful what you say, who you say it to, when you say it, and by what method you communicate!

Jody LeWitter
Siegel & LeWitter
jlewitter@sl-employmentlaw.com