Tuesday, August 21, 2012

Green on Against Employer Dumpster Diving for E-Mail

GreenMichael Z. Green (Texas Wesleyan University School of Law)  has recently posted his new piece on SSRN: Against Employer Dumpster Diving for E-Mail.

Here is the Abstract:    

Recent attorney-client privilege cases offer a modern understanding of reasonable expectations of employee privacy in the digital age. Employees have increasingly made electronic mail communications to their attorneys via employer-provided computers or other digital devices with an expectation of privacy and confidentiality. Historically, courts have summarily dispensed with these matters by finding that an employer’s policy establishing clear ownership of any communications made through employer-provided devices eliminates any employee expectation of privacy in the communications and waives any viable privacy challenges to employer review of those communications. Nevertheless, within the last couple of years, several cases involving employee assertions of attorney-client privilege protection in e-mails sent on employer-provided devices suggest new thoughts about reasonable workplace privacy expectations.

As employees must communicate through employer-provided digital devices day and night, these attorney-client privilege cases help expose the fallacy of assuming employees cannot reasonably expect that e-mails will remain private if employer policies mandate the communications are not private. These new cases and related ethics opinions about privileged e-mail offer a modern lens through which one may now view employee privacy expectations under a new paradigm that replaces the façade of assuming employees have no expectation of privacy due to employer policies.

Digital age expectations regarding employee use of smart cellular phones, portable laptops, and other employer-provided devices to make communications beyond standard work hours leaves little expectation or opportunity for employees to reasonably communicate privately and confidentially by any other means than through these employer-provided devices. As a result, this article asserts that employer efforts to mine their devices for employee e-mails after disputes ensue comprises a form of electronic dumpster diving that should not be tolerated by courts, legislatures, or attorney ethics committees.

I have to say I agree wholeheartedly with Michael, though diving into dumpsters (at least without trash) does sound like fun.  It is time to reconsider the paradigm that allows employers to dictate employee privacy interests in the workplace through some version of the "operational realities on the ground" test.  I think Michael has taken an important first step in thinking of ways that we can do just that through consideration of these attorney-client cases.



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