Articles Posted in Privacy

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 Co., LLC, , 191 Cal.App.4th 1047 (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.

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).