But how deep can you dig? In most situations, that depends on your electronic communications policy – and the specifics of said policy. As a recent court decision revealed, precise wording matters. In Holmes v. Petrovich Development Co., LLC, an employee sued her employee for discrimination and retaliation. While developing its defense, the employer identified emails the employee sent to her attorney from her work computer using her personal, password-protected email account. Although the employee argued that the emails were off-limits due to attorney-client privilege, details in the employee handbook proved otherwise.
There, in black and white, were the following guidelines: (1) company computers are to be used only for company business; (2) employees are prohibited from accessing personal email on company computers; (3) the company will monitor its computers for compliance with the policy and thus might "inspect all files and messages . . . at any time"; and (4) employees using company computers to create or maintain personal information or messages "have no right of privacy with respect to that information or message."
Due to the explicit and prohibitive workplace policy (which the employee received and reviewed), the court ruled that the emails were not privileged and that the employer was entitled to use them in the case.
Lesson learned: Your employee handbook should include a well-drafted electronic communications policy that informs employees that there will be no expectation of privacy for personal business conducted on company equipment – and that your company may review e-mails, voicemails, web search history and other activity for any legitimate business purpose. The policy should also advise employees that use or misuse of company equipment violates company policy and is subject to disciplinary action. That way, your company is shielded from liability for reasonably reviewing employee communications.
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