A California court has ruled that an employee’s emails with her lawyer over the company’s computer system were not privileged because they “were akin to consulting with her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard.” Holmes v. Petrovich Dev. Co., 2011 WL 117230 (Cal. Ct. App. 2011).
Holmes’ employer had in place a policy stating that its computers were to be used only for business purposes, and employees were prohibited from sending or receiving personal email. In addition, the policy warned employees that the company could inspect any messages on the company’s email systems at any time and that the employees should have no expectation of privacy with respect to any information sent or received over the company’s computer system. Despite having been advised of the company’s policy and signing a statement to that effect, Holmes used company email and fax machines to communicate with her attorney, and the employer successfully used those communications against her at trial.
This case reinforces the importance to employers of implementing a sound information technology usage policy that restricts use of company email systems and other communication devices to business purposes and affirmatively eliminates employees’ expectation of privacy by advising them that their communications may be monitored at any time. The case also emphasizes the importance of having employees explicitly acknowledge receipt of the technology usage policy. Employers need not expend resources actively monitoring employee communications, as the Holmes court made clear that it is unreasonable for an employee to believe that personal email sent by company computer is private simply because the employee is unaware that the employer ever actually monitored emails.