Contact Us
Categories
- FTC
- Emotional Support Animals
- Service Animals
- Employee Agreement
- Remote Work
- Federal Trade Commission
- LGBTQ
- Minors
- United States Department of Justice ("DOJ")
- Arbitration
- Work from Home
- Workplace health
- Intellectual Property
- Trade Secrets
- Corporate
- Center for Disease Control
- Americans with Disabilities Act ("ADA")
- FFCRA
- Opioid Epidemic
- Occupational Safety and Health Administration (“OSHA”)
- COVID-19
- IRS
- Temporary Leave
- Treasury
- Coronavirus
- Families First Coronavirus Response Act
- H.R.6201
- Health Care Law
- Paid Sick Leave
- Worker Misclassification
- Labor Law
- Overtime
- Kentucky Unemployment Insurance Commission
- Sexual Harassment
- FMLA Retaliation
- Overtime Rule
- Employer Wellness Programs
- Employment Non-Discrimination Act ("ENDA")
- Genetic Information Nondiscrimination Act ("GINA")
- Kentucky minimum wage
- Minimum wage
- Paid Time Off ("PTO")
- Sick Employees
- Wage and Hour
- Employee Benefits
- Employment Discrimination Laws
- ERISA
- Fair Labor Standards Act (FLSA)
- Human Resource Department
- Independent Contractors
- Kentucky Civil Rights Act (“KCRA”)
- OSHA
- Overtime Pay
- Social Media
- Social Media Policies
- U.S. Department of Labor
- Union
- ADA Amendments Act of 2008 (“ADAAA”)
- Adverse Employment Action
- Amazon
- Americans with Disabilities Act
- Bring Your Own Device
- BYOD
- Civil Rights
- Compliance
- Department of Health and Human Services
- Department of Labor ("DOL")
- EEOC
- Employee Handbook
- Employee Misconduct
- Employment Law
- Family and Medical Leave Act (“FMLA”)
- National Labor Relations Act (NLRA)
- National Labor Relations Board (NLRB)
- Portal-to-Portal Act of 1947
- Pregnancy Discrimination Act
- Security Screening
- Title VII of the 1964 Civil Rights Act
- U.S. Equal Employment Opportunity Commission (“EEOC”)
- U.S. Supreme Court
- Uncategorized
- Volunteer
- Young v. UPS
- Federal contractors
- Kentucky Labor Cabinet’s Occupational Safety and Health Program (KOSH)
- Micro-unit
- Security Checks
- Specialty Healthcare & Rehabilitation Center of Mobile
- Cloud
- Creech v. Brown
- EEOC v. Hill Country Farms
- Equal Employment Opportunity Commission v. Kaplan Higher Education Corp.
- Lane v. Franks
- Mine Safety and Health Administration ("MSHA")
- Non-exempt employees
- Northwestern
- Shazor v. Prof’l Transit Mgmt.
- Web Content Accessibility Guidelines
- Whistleblower
- WorkSmart Kentucky
- "Ban-the-box"
- 2013)
- At-will employment
- Berrier v. Bizer
- Bullying
- Chapter 11 Bankruptcy
- Chenzira v. Cincinnati Children’s Hospital Medical Center
- Citizens United v. Federal Election Commission
- COBRA
- Companionship services
- Compensatory time off
- Conestoga Woods Specialties v. Sebelius
- Consumer Credit Protection Act (“CCPA”)
- Crystalline Silica
- Davis-Bacon and Related Acts
- Defense of Marriage Act (“DOMA”)
- Drug-Free Workplaces
- Earnings
- EEOC v. Fabricut
- EEOC v. The Founders Pavilion
- Ehling v. Monmouth-Ocean Hospital Service Corp.
- Federal Stored Communications Act (“SCA”)
- Giant Food LLC
- Government employees
- Government shutdown
- Health-Contingent Wellness Programs
- HIPAA
- Home Health Care Workers
- Illness and Injury Reports
- Job applications
- Jury duty
- Kentucky Department of Workers’ Claims
- Kentucky Wage and Hour Act
- KYSHRM 2013
- Mandatory vaccination policies
- Maternity Leave
- McNamara O’Hara Service Contract Act
- Medical Exams
- NFL Bullying Scandal
- Participatory Wellness Programs
- Payroll
- Pension Plans
- Permissible Exposure Level ("PEL")
- Private employers
- Sebelius v. Hobby Lobby Stores
- Senate Bill 157
- SHRM
- Small Business Administration (SBA)
- United States v. Windsor
- Violence
- Wage garnishment
- Contraceptive Mandate
- Defamation
- Employee Arrests
- Employee Forms
- Employee Hazards
- Employee of the Month Programs
- Employee photographs
- Employee Training
- Employer Group Health Plans
- Employer Mandate
- Employment Practices Liability Insurance
- Endorsements
- Federal Workplace Agencies
- FICA
- Form I-9
- Freedom of Speech
- Gatto v. United Airlines and allied Aviation Services
- House Labor and Industry Committee
- KRS 391.170
- Litigation
- Madry v. Gibraltar National Corporation
- Megivern v. Glacier Hills Incorporated
- Motivating Factor
- Obesity
- Online Account Protection
- Online Defamation
- Patient Protection and Affordable Care Act
- Pennington v. Wagner’s Pharmacy
- Play or Pay
- Posting Requirements
- Record Retention
- Reference checks
- Religious Employer
- Right to Work Bill
- Sequester
- Severance Pay
- Social Media Ownership
- Supervisor
- Supplemental Unemployment Compensation Benefits
- Tangible employment actions
- Tax Refund
- Telecommuting
- Title VII retaliation cases
- Troyer v. T.John.E Productions
- U.S. Citizenship and Immigration Services
- Unfair Labor Practice
- United States v. Quality Stores
- University of Texas Southwestern Medical Center v. Nassar
- Vance v. Ball State University
- White v. Baptist Memorial Health Care Corp.
- Crisis Management
- Job Description
- Job Requirement
- Kentucky’s Whistleblower Act
- Labor and Pensions ("HELP")
- Municipal Liability
- PhoneDog v. Kravitz
- Public Sector Liability
- Social Networking Online Protection Act (SNOP)
- Social Privacy Laws
- Strategic Enforcement Plan (SEP)
- Wilson v. City of Central City
- Workplace Politics
- Business Insurance
- Class Action Waivers
- Criminal Background Checks
- Employee Performance Reviews
- Employee Personnel Files
- Federal Arbitration Act (FAA)
- Federal Department of Labor
- Hiring and Firing
- Hosanna-Tabor Opinion
- Informal Discussion Letter (“EEOC Letter”)
- Insurance Coverage
- Kentucky Labor Cabinet
- National Labor Relations Act
- Retaliation by Association
- Salary Threshold
- Unemployment Benefits
- Workplace Discrimination, Harassment and Retaliation
- Communications Decency Act
- Employee Contracts
- Internet & Media Law
- Internet Defamation
- Non-Compete Agreement
- Uniformed Services Employment and Reemployment Rights Act
- USERRA
Are Personal Emails Private in the Workplace?
Can companies monitor and read personal emails? While this is no longer a novel question, companies continue to struggle with finding ways to protect their ability to access and monitor employees’ email activity. A review of recent cases reminds us that while the answer is usually situational, the result almost always hinges on the strength and specificity of the company’s computer and email use policy.
In Stengart v. Loving Care Agency Inc LCA (NJ: Appellate Div. 2010) an employee sued the company for discrimination. After Stengart filed suit, the company retrieved emails sent from her personal, password-protected account. The messages had been automatically saved to Stengart’s browser’s cache, and were accessed when the company looked through her work laptop to review all of her saved files. The company introduced the emails at trial despite the fact that they contained conversations between Stengart and her attorney.
Stengart objected to the introduction of the emails, claiming a right to privacy and violation of the attorney-client privilege. The company argued that Stengart had no right to privacy because their computer use policy clearly stated that any and all employee activity on workplace computers could be monitored. The court disagreed with the company, however, and ruled in favor of the plaintiff on the basis that the policy did not expressly notify employees that the policy encompassed emails sent from personal accounts or that emails from personal accounts would be saved to the computer hard drive. The Court found, therefore, that Stengart had a “reasonable expectation of privacy” in the subject emails.
In contrast to the ruling in Stengart, Holmes v. Petrovich Development Co. (191 Cal.App.4th 1047 2011), offers an example of how a clear, well-written policy can protect a company’s interests. Here, the employee sued for discrimination regarding her pregnancy leave. In the process of gathering evidence for its defense, the company accessed emails between the plaintiff and her attorney that she sent from her work email. Holmes claimed violation of her attorney-client privilege, arguing that the messages were private and should therefore be protected. The company argued that because Holmes sent the emails from work, on a company computer and used a corporate email account, there was no legitimate expectation of privacy. Holmes had been advised that employees using company computers to create or maintain personal information or messages had "no expectation of privacy with respect to the message or the information." The court agreed and ruled in favor of the company.
The distinguishing factors in these cases were clearly (i) the use of a company email account versus a personal email account and (ii) the presence of a clearly articulated policy notifying employees that they should have no expectation of privacy when sending or reading emails at work, using company equipment, or when accessing personal accounts at work or on work equipment.
The increasing ease of access to e-mail makes it ever more tempting for employees to log-on and check their personal accounts while at work or to misuse corporate accounts by sending personal emails during work hours. As technology develops and as employees find it easier to send personal emails, companies must continue to specifically evaluate and address computer use, including emails, as part of their policies. Doing so is vital to defining appropriate usage in order to assure protection for the company.
Similar concerns and cases arise in the context of employee texting. Check back on Friday when we discuss City of Ontario vs. Quon, and outline elements of a strong cell phone, internet, email and computer usage policy.
Services may be performed by others.
This article does not constitute legal advice.