February 22, 2019 – If you are provided with an email account and electronic devices from your place of employment, it can be convenient to use them for personal matters. Often, limited personal use of company property is unproblematic for an employee, but when it comes to legal matters, it is important to know that communications made via work emails or from work-issued devices are subject to different terms and conditions than those made from personal accounts, computers and phones. Clients involved in employment claims are frequently surprised to learn that if an employer monitors use of company email and/or device, attorney-client privilege may be waived.

Attorney-Client Privilege

The attorney-client privilege is a legal concept intended to keep communications between an attorney and client confidential. The purpose of the privilege is to allow the client to confide freely with an attorney without fear that the communication will be revealed and to gain sound legal advice. In litigation, the attorney-client privilege is important because it protects communications made in confidence from disclosure and from being used against the client.

Waiver of the Attorney-Client Privilege

Communications in the attorney-client relationship cannot be disclosed in litigation unless the protected party waives the privilege. Waiver can occur when the confidential information is disclosed to a third party like an employer. Communications that have been waived are no longer protected by the privilege and may be admissible in court against the employee.

Employment Policies Concerning Privacy and Usage of Company Devices

Many companies have policies that discuss usage of company-issued computers and portable electronic devices. These policies are usually included in the employee handbook and provide explicit instructions on how the information communicated from these devices will be treated. For example, a policy may state that company-issued computers, electronic devices, servers, software, emails and/or internet access resources are company property that must be used primarily for business purposes only. This will likely include all documents and messages composed, sent, received and/or stored on the internet and communication storage systems, all of which may be deemed company property.

Further, the policy may state that the employee can expect no privacy when using the company’s technology resources when transmitting or receiving communications. In fact, the company may stat that it will actively monitor equipment usage and communications at any time with notice or permission. The purpose of these policies is to clearly notify employees about how the company treats communications made from their devices. Employees should consult their employee handbooks for any usage and privacy policies.

What if I used a company email address to communication with my employment lawyer?

If an email has been sent from or received on a company email address or device, and there are usage and monitoring policies in place, it’s likely the attorney-client privilege has been waived.

In cases where there are no explicit policies, courts consider the issue on a case-by-case basis, focusing on whether the employee had a reasonable expectation of privacy to determine whether privilege is officially lost. Key questions courts ask are: 1) Does the employer maintain a policy prohibiting personal use of work emails or devices? 2) Was the employee aware of use and monitoring policies, and did the employer notify them of such? 3) Does the company monitor email and computer use? 4) Do third parties have a right to access the computer or email? Taking these factors into account is essential if you have already used your work email and/or company device for communications that you wish to keep private.

If a personal device and email are available to you, use them when contacting an employment lawyer. The consequences of revealing details of an employment case to an employer are significant and will likely lead to the waiver of the attorney-client privilege.

Additionally, while courts generally allow privilege to stay intact if web-based services like Gmail are used for personal correspondence, using a company device or company network—even if a personal email account is used—may also result in lost privilege. The bottom line is, if you are communicating with an attorney, you should always use both a personal email address and a personal computer or device.

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