Employee-Owned Laptops Not Protected Against Discovery by Employers

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As employers and employees wrestle with the issue of employees’ rights to privacy in a digital workplace and world, the New Jersey Supreme Court has clearly ruled in favor of the employee in a recent case brought before the judges. Although the ruling cannot be applied in other states, many legal experts expect many other states’ supreme courts to agree with the principle if they are presented with similar cases.

In this particular case, client-attorney privilege was the legal issue being disputed. The employer, or plaintiff, used her company-issued laptop to communicate with her attorney, but through her personal, password-protected e-mail account, not her company-assigned account. These e-mails referred to a lawsuit she was considering filing against her employer and were sent just before her resignation from the company. Once the now former employee filed an employment discrimination claim, the employer and its attorney were able to access the files on the company-issued laptop and read the e-mails between the employee and her attorney.

The employer, or defendant, asserted that the company’s computer-use policy clearly stated that any files and communications generated by the company’s computers were the employer’s property, so the client-attorney privilege did not apply. Although the court agreed with that portion of the computer-use policy, it stated that the policy also included an :occasional personal use” clause, which wasn’t so clear. The court stated the employee could interpret that clause to indicate that she expected some right to privacy, especially if her e-mails were sent through her personal, non-company account.

This is an area of employment policy and labor law that is still evolving rapidly; and, frankly, as judges and courts become more computer-savvy, they will establish many precedents that employers must know and understand, and then update their employee handbooks, accordingly. This New Jersey Supreme Court ruling should motivate employers to review electronic communications section of their employee handbooks immediately, and clarify policies that relate directly to this judgment.

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