Enforce Technology-Use Policies to Manage Employees' Privacy Expectations

Business communications are no longer limited to meetings, telephone or mail. Employers routinely provide employees with laptops, cell phones and handheld devices. As employees use such devices for personal communications and employers adopt policies to restrict use to business and preserve the employer’s right to monitor employee use, legal conflicts increasingly arise between employee expectations of privacy and employer control over its technology usage. Recent litigation demonstrates that an employer’s technology usage policies may be the key to tipping the balance in favor of the employer.

A recent New York case, Scott v. Beth Israel Medical Center, 2007 NY Slip Op 27429 (NY Misc., Oct. 17, 2007), addressed these competing interests. In Scott, a terminated employee sued his employer for breach of his employment agreement. During litigation, the employer discovered e-mail correspondence on its computer system between the employee and his attorneys relating to the subject of the litigation. The employee argued that these communications were protected by the attorney-client and work-product privileges. The employer maintained that the privileges did not apply because the communications using the employer’s computer and e-mail systems were not made in confidence or in a manner that would protect them from disclosure to third parties.