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E mails in the Workplace Again:
Some courts find privacy

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Generally you're still OK
if the handbook is clear

        The courts do listen when you tell the employee in writing that any communications generated or files created using your electronic devices are the property of the organization.  But a couple recent decisions (2006) are informative, and one carves out a narrow exception.

        In a federal case from New York, an employee used her company laptop at home to access her personal AOL account.  She logged on to communicate via e mail with her attorney to discuss a pending employment claim against the employer.  Before returning the laptop to HR she deleted all personal files, but the company nevertheless recovered some of the e mails to her lawyer and other personal files she exchanged with him. 

        In the lawsuit she was maintaining the employer claimed these communications were not protected by attorney-client privilege because of her waiver.  But the court found that she had taken reasonable steps to keep the communications secret.  The court rejected the argument, based on the employee handbook, that all files created using the laptop were company property.  The judge noted that the company usually did not engage in such monitoring of company devices used by employees.  Curto v. Med. World Communication, Inc., 2006 U.S. Dist. LEXIS 29387 (EDNY May 15, 2006).

        In a second case, a public employee accused of misusing public funds conceded that the county government and the sheriff had the right to access his personal e mail on the computer the county had assigned to him.  But he successfully resisted the efforts of a local newspaper under the Arizona Public Records Act to have access also.  An Arizona court of appeals ruled that personal e mails created on a public employer's computer were not public record since they did not concern official business.  Griffis v. Pinal County and Phoenix Newspapers, Inc., 141 P3d 780 (Ariz App. 2006).

 

1/23/07