Risky Business

“Jeopardy” Clue: A 1998 film about a virtual courtship between a woman and a man who, unbeknownst to each other, are business competitors. Correct response: What is “You've Got Mail”?

Some people relish e-mail, while others despise it. Much depends on context. Work e-mail may be a distraction and a chore, but it's still efficient and useful … and critical. No less so for personal e-mail, which probably ranks just behind cell phones as an essential life support device.

For companies large and small, and waste firms are no exception, a fact of life is this: employees use office e-mail to keep up with friends and family, and for personal transactions, despite clear company policies discouraging or forbidding such activity. As a result, when you're at work, the question often becomes “Who's Got Mail?”

In particular, what's the status of personal, confidential messages to one's lawyer or spouse? If an employer, under company policy, is entitled to randomly monitor employee e-mail, can an employee select certain messages for special treatment? In other words, does an employer have the right to access attorney-client communications or communication between spouses?

The short answer: Generally not, if the employee has a reasonable expectation of privacy in the particular communications. But, as always, remember: laws vary from state to state.

The long-established attorney-client privilege promotes free and open disclosure between a lawyer and client, and protects communications made in confidence in the course of seeking legal advice. The marital privilege, which protects conversations between spouses both during the marriage and after divorce, is intended to encourage free and frank discussions (presumably) leading to domestic tranquility.

To determine if an employee surrenders these privileges when he or she sends messages from work, courts will examine the employer's e-mail policy (if such a policy exists) and whether the employer has taken steps to make the employees aware of the policy. At the next level, the question can become how fairly and routinely the policy is applied.

Perhaps the most important questions for courts are: Is there a policy and, if so, how is it worded? An employer without a personal/business e-mail policy is rare these days. Therefore, on a case-by-case basis, courts will examine what the company policy says.

Typically, anything produced on a work computer and sent using the work e-mail address is open to inspection by network managers and company owners. To assure such access, employers should spread the word within the company in unmistakably clear terms. Going further, if an employer intends to restrict correspondence even where the worker uses, say, a personal Yahoo or AOL account from a work computer, then the policy should say so. Similarly, if the content of such “personal” e-mail is accessible (because it is created or stored on system hardware) then employees should be notified.

Finally, even in instances when an employer clearly articulates its e-mail policy and consistently enforces it, courts may nevertheless cite public policy considerations — the “sanctity” of certain communications — in upholding claims that an employee had not waived the privilege.
— Barry Shanoff
Legal Editor
Rockville, Md.