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  • In all walks of life, the explosion of information technology over the last 20 years has had profound effects on our society that we are constantly struggling to get our arms around. In the workplace, among other things, this proliferation has meant that e-mails have largely displaced hard copy letters and interoffice memoranda. To grapple with the issues electronic communications present, prudent employers have developed clear and concise electronic communications and internet use policies that state that the use of the employer’s computers and the transmission of e-mails is restricted to the furtherance of the employer’s business, and that any personal e-mails sent to or received by any employee on his or her assigned work computer are accordingly the property of the employer and are not private. Although such policies reflect common sense and seem to be aligned with privacy laws generally, until recently, their effectiveness and validity seemed to be an open question. A January 2011 decision by the California Court of Appeal indicates that such employer policies are on solid footing.

    The Facts: In Holmes v. Petrovich Development Company, LLC, the plaintiff-employee was offended by her supervisor’s comments regarding her pregnancy. After a testy exchange between the supervisor and the employee regarding the potential length of the employee’s pregnancy leave, the employee proceeded to exchange e-mails with a labor and employment attorney through her work e-mail account. 

    The employee ultimately resigned and sued her employer for, among other things, intentional infliction of emotional distress and invasion of privacy. In support of its motion for summary judgment on the cause of action for intentional infliction of emotional distress, the employer submitted the e-mails that the employee had sent to her attorney. The employee moved for discovery sanctions on the basis that the e-mails were attorney-client privileged communications and that their use and disclosure was an abuse of the discovery process under the California Civil Discovery Act. 

    The employee’s sanctions motion was denied, these same e-mails were admitted at trial, and ultimately the employer prevailed on all remaining causes of action after a jury trial. The employee appealed on the basis that the e-mails were attorney-client privileged and that it was error for the trial court to deny sanctions and to admit these e-mails into evidence. The Court of Appeal disagreed and affirmed the trial court’s ruling.

    The Court of Appeal acknowledged that confidential communications do not lose their confidential character merely because they are in electronic form, but held that this wasn’t the point—the e-mails at issue were not private and not confidential because the employee acknowledged receipt of a company policy that expressly stated this fact. The employer’s handbook actually described such a company e-mail as a “postcard” rather than a sealed letter. To drive the point home, the Court of Appeal stated that, had the employee e-mailed her counsel from her home computer, that communication would surely have been privileged; however, the employee instead “used defendants’ computer, after being expressly advised this was a means that was not private and was accessible by [the supervisor]. This is akin to consulting her attorney in one of defendants’ conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by [her supervisor] would be privileged.” See Holmes v. Petrovich Development Company, LLC, 2011 WL 117230 at 14. 

    The Bottom Line: The Holmes decision clearly supports employer policies restricting employees’ use of employer computers and electronic communications and disclaiming any right of privacy to such communications. Critical to the Court’s analysis, however, was the fact that the employer expressly and clearly communicated a cogent, written policy regarding computer and internet use to its employees. In the absence of such a buttoned down policy, the decision could have gone the other way. 

    The Plan of Action: An out of date employee handbook is akin to out-of-date virus software: not very effective. Contact GGLTS for review of your employee handbook. Your company’s electronic communications and internet use policy is only one of several such policies that may benefit from a timely review and revision. 

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    Copyright 2011 Gibbs, Giden, Locher, Turner & Senet LLP