In a private workplace, an employer has control over its communications, mobile devices, computer systems and phones. This is not new case law, as it's been this way for quite a while, says Wendi Lazar, attorney in employment law at Outten and Golden, LLP in New York. What's changed over the past few years, she says, is that we now have communication devices and mobile devices that are working all the time and so the lines are blurred.
Lazar says that what the courts have made very clear is that employers need to set very clear, concise policies that let the employee know what they can or can't do, such as accessing private emails throughout the day, shopping online, emails that are confidential or text messaging on a device that belongs to the company. It is important for an employer to have set policies.
It is very hard to tell an employee, for example, who is involved in a lawsuit that they cannot contact their lawyer or access medical records via email or get a prescription from a doctor, Lazar notes, as these conversations or emails may need to get done at work.
The courts have given some freedom to employees to protect employee privacy in the context of attorney/client privilege and certain states say that if you talk to your lawyer on a company computer, it's not confidential, says Lazar.
In New Jersey, they have made it clear that an employer should not be looking at an employee's confidential communications with his or her lawyer. In fact, emails are not discoverable in a court of law and the courts have gone as far as to sanction counsel for the employer for looking at emails, says Lazar.
The employer has the right to protect all of its confidential information and some states allow employers to make complete mirror images of their data on their server. On the other hand, Lazar says, there are states that say an employer cannot without authorization access any personal email, as it is a violation of the Stored Communications Act.
Sending trade secrets or proprietary data from your current employer's computer or company email to a possible future employer or recruiter can result in trade secret violation and can be criminal and very serious. Lazar cites the car industry and financial industry as having this situation arise.
Lazar says that it is best for an employer to have clear, written policies that describe in detail what an employee can and cannot do on a workplace computer and what an employee can and cannot use. Also, employers need to understand that there are certain limited privacy rights that employees do have and they can't use employees' private passwords to get into their email accounts. An employer cannot monitor without advising the employee that they're doing so, Lazar adds.
As for an employee, Lazar says "if you have private issues to deal with, do it on a private device and don't involve the company in your private life."