I read an interesting article this morning on the results of an important legal case between an employee and Loving Care Agency, Inc. It has implications for every one of our clients. I know that we’ve said it before, probably not loud or often enough, but everyone needs a computer network use policy. If you don’t have one yet, let’s get that done.
“The machine may be the employer’s, but, in the post-LovingCare world, the data may be the employee’s – at least where the cloud and the attorney-client privilege are involved. You can read my detailed case analysis below.”
In this case, an employee had a conversation about her employer with her attorney using Yahoo mail from her work computer. The New Jersey Supreme court ruled that the conversations were private and subject to attorney-client privilege.
Two things happened here. First the existing computer use policy left wiggle room for personal use of the computers. Second, the court ruled that client-attorney privilege can’t be subject to any corporate policy that informs the employee that their activity would be monitored.
Now this took place in New Jersey and we’re in Michigan, so there’s time. But this seems to be a trend and the only way for businesses to protect themselves will be to have computer network policies that are strict and do not allow “wiggle room” for personal use. Doing so could protect you in the event you have the business need to monitor an employees activity; to do so without prior consent might be unlawful.
There are some templates available for policies like this. Of course you should have your attorney look it over before implementing one.