The New Jersey Supreme Court recently held that an employee has a reasonable expectation of privacy for emails sent through a personal email account (email@example.com for example) over her employer's network. This is significant because prior law had held just the opposite-namely that the employer did have access to anything an employee was sending over the employer's network. While this case focused extensively on the relationship between the attorney client privilege (because the personal email the employee sent was to her lawyer about a lawsuit against her employer) and the employer's right to review company email -- this case should give pause to human resource departments that it might be a good time to update or perhaps create your employee manuals.
At our Philadelphia business law firm, we like to think of an employee handbook as not only benefiting the employee, but also providing tremendous legal benefits for the employer. By having a clearly defined policy or procedure in place, along with defined consequences for the failure to meet them, exposure to litigation is greatly reduced. In fact, business insurance carriers will often reduce your premium if you have clearly defined policies for email, communication, sexual harassment, and anti-discrimination.
As a result of this case we are now advising our clients to have communication policies in place that provide notice to employees that personal email accounts (name@gmail or firstname.lastname@example.org for example) are subject to monitoring when sent over the company network. In addition, even if you elect not to monitor personal emails sent over the company's network, everyone should be aware that records of such emails may be discoverable in litigation. This could lead to very embarrassing situations for you and your employees. Any company, whether it is small or large, can benefit by having a strong electronic communications policy in effect to reduce company exposure in litigation.