Unfortunately, what you say, and when you say it, about your employer can have a detrimental effect on your future working situation.
I've stressed the importance of watching what you say online, but it's also important to watch where your conversations are coming from. The New Jersey case of Stengart v. Loving Care Agency, 973 A.2d 390 (N.J. 2009), is an example of how an employer may use your email conversations against you.
The issue in Stengart was "whether workplace regulations converted an employee's emails with her attorney — sent through the employee's personal, password-protected, web-based email account, but via her employer's computer — into the employer's property."
The plaintiff had anticipated filing a lawsuit against her employer, and therefore had regular email communications with her attorney. The problem was that the employee used her work computer to send email through her private Yahoo! email account.
The employer argued that the messages were "discoverable" documents (meaning the documents would become evidence against the employee), and therefore not subject to the "attorney-client privilege." Obviously, the employee argued that the email message were privileged, and could not be used against her at trial.
The employer used its policy handbook to justify its position. The trial court agreed that the documents were not privileged, and admitted them as evidence. However, on appeal, the Superior Court of New Jersey, held that the employer had a vague policy regarding email communication, and therefore the email sent through a private email account retained some expectation of privacy. Additionally, the Court held that the company's ownership of the computer did not instill an unrestricted right to examine the private contents. Specifically, the Court reasoned that "the company had no greater interest in those communications than it would if it had engaged in the highly impermissible conduct of electronically eavesdropping on a conversation between plaintiff and her attorney while she was on a lunch break."
This case is profoundly important (at least in New jersey) because of its emphasis on the attorney-client relationship, but also on the extent of "employer eavesdropping." Even though the employee won, I find it shocking how much information the employer was able to obtain. The controversial communications were stored computer images of the employee's web-based email program. I didn't know you could get that information, and I didn't realize to what extent the employer could look at those snapshots.
Stengart illustrates that you need to get away and avoid all employer-sponsored computers when you're doing "non-work" activities. As you can see, nothing is ever really private, despite how much you want to believe it is.
