The Spotlight on Employee Privacy

In the past week, there have been two notable cases in which employee privacy played a central role:  NASA v. Nelson, addressing the right to privacy related to an employee’s background information, and Holmes v. Petrovich Development Company, LLC, dealing with an employee’s right to claim that personal emails sent to her attorney from her work computer were privileged.

In NASA v. Nelson, the Supreme Court held that the background check performed by NASA did not violate its contract employees’ right to privacy.

NASA required the respondents, contract employees at its Jet Propulsion Laboratory, to provide certain information related to their past drug use, if any. NASA also required that they sign a release, permitting the government to ask open-ended questions to their schools, employers, and others regarding their honesty and trustworthiness, among other matters. 

The Supreme Court ruled that, even assuming the challenged inquiries implicated a privacy interest of constitutional interest, the questions asked and information sought by the government was reasonable. The Court noted that the challenged questions are “part of a standard employment background check of the sort used by millions of private employers.”

As observed by The Workplace Prof Blog , the Court uses language similar to the recently decided Quon decision and further connects workplace privacy interests between the public and private sector.

In Holmes, the Court of Appeals of California held that emails an employee sent to her attorney on her work computer were not privileged. The introduction of the emails into evidence was permitted as the employee used her company email account after being warned that it was to be used only for company business, that emails were not private, and that the company would randomly and periodically monitor its technology resources to ensure compliance with the policy.  In other words, the employee had no expectation of privacy.

The court explained that under the California Evidence Code § 917, an attorney-client communication does not lose its privileged character for the sole reason that it is communicated by electronic means or because others involved in the delivery of the email may have access to its content.  However, this does not mean that an electronic communication is privileged (1) when the electronic means used belongs to the defendant; (2) the defendant has advised the plaintiff that communications using electronic means are not private, may be monitored, and may be used only for business purposes; and (3) the plaintiff is aware of and agrees to these conditions.

“The e-mails sent via company computer under the circumstances of this case were akin to consulting 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 by him.”

As explained in the Connecticut Employment Law Blog , this case plays out quite differently than the New Jersey Supreme Court ruling from 2010, which I also recently discussed. In Stengart, the court recognized a privacy interest in an employee’s communications to her attorney on her work computer.

One distinction worth noting between the two cases is that the employer’s policy in Stengart permitted employees to use their computer occasionally for personal use; whereas, in Holmes, the policy included a blanket exclusion against all personal use.

About Ashley Kasarjian

Attorney at Snell and Wilmer in Phoenix, Arizona, and publisher of the blog, Employment and the Law.
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