For Your Eyes Only: Important Updates About Using Your Work Email

Posted by Jeffrey R. A. Edwards, Esq.

In a timely reminder about how- and how not- to use your work email, the Third District Court of Appeal rules an employee’s emails to and from her attorney using the employers’ email system are not confidential.

Almost everyone uses email and other electronic means to communicate on a regular basis. While most people assume they control who reads their emails, special rules apply when employees use their employer’s computers and email system to send and receive messages. In many circumstances, your employer can read these emails and use them against you for discipline and in court.

In Holmes v. Petrovich Development Co., a woman sued her employer for discrimination. (Holmes v. Petrovich Development Co. [2011] Cal.Rptr.3d, 2011 WL 117230). During the litigation, her employer used emails she sent and received from her attorney to get parts of the lawsuit dismissed. She claimed the emails were protected by attorney-client privilege, but the Court rejected her claims because the employer had a stated policy of monitoring email use and did not allow employees to use company email for personal reasons.

The Court argued “[b]y using the company’s computer to communicate with her lawyer, knowing the communications violated company computer policy and could be discovered by her employer due to company monitoring of email usage, [the employee] did not communicate in confidence…” Instead, the court noted, “the emails… were akin to consulting a lawyer in her employer’s conference room, in a loud voice, with the door open….” As a result, the Court allowed the employer to use the emails against her.

Holmes is the latest of several cases in which courts allowed employers to use employees’ electronic messages against them. (See Monitoring Employee E-mail: Efficient Workplaces vs. Employee Privacy, 2001 Duke L. & Tech. Rev. 0026.) You can help protect yourself by following these guidelines.

Computer Use Privacy Checklist

• Do not use work computers to check private information like bank balances or health records.
• Assume your supervisor will read every email you send from work.
• Tell your friends and family to use your personal email address.
• Assume your employer’s IT department will check your Web browser history.
• Meet in person or use your personal cell phone for non-work communication.
• Remember your computer screen can be monitored remotely.

Whether your employer can use specific electronic messages against you depends on several factors. Employees with questions about the safety of their electronic messages should contact an attorney right away to discuss how these rules apply to their specific circumstances.

Jeffrey R. A. Edwards, an associate in the Labor Department at Mastagni, Holstedt, Amick, Miller & Johnsen.