No Written Policy, No Email Monitoring Allowed in California
In March, the Second District Court of Appeal published Militello v. VFarm 1509. In that case, former business partners waged litigation against each other over a dispute centering on their vertically integrated cannabis business.
The Second District Holding
To support her claims, the plaintiff, Militello, retrieved prior email communications between the defendant and her husband covered by the spousal privilege from the company’s communication platform. Defendant argued these were private and privileged emails. Militello contended that defendant did not hold a reasonable expectation of privacy on the emails because the company platform that stored the emails was not confidential and was subject to review by an administrator.
The Court of Appeal held plaintiff’s position unpersuasive, finding it significant that Militello furnished no evidence of the company’s workplace policies showing that the defendant was aware or even agreed to any email monitoring practice. The Court held that in the absence of such evidence, the emails remain confidential and privileged.
What California Employers Should Do
Many California employers provide employees with work email accounts. Although many employers monitor employee email accounts, some do so without having a policy in place explicitly informing employees of this practice.
In light of the Second Appellate District’s recent decision, and other practical considerations, California employers that monitor, or intend to monitor emails at any time in the future, should incorporate a written email policy that explicitly informs employees that the company will actively monitor their company email accounts. A California employer’s failure to have such a policy and practice may lead to a finding that the employee has a reasonable expectation of privacy in their work email accounts, consistent with the Constitutional right of privacy set forth in Article I of the California Constitution.
Late last year, this blog published an article that broadly discussed employee email monitoring and related privacy implications, which offers additional suggestions and which readers can view here.
What Should the Email Policy Include?
The Court did not address what constitutes a compliant policy. However, employers’ written policies should state, at a minimum, that the employer has access to and regularly monitors the employee’s work email account and that the work email account is not for personal use (or, that employees who use the company’s electronic communication systems for personal purposes do so at their own risk and expressly consent to the company monitoring those communications).
Employers should uniformly enforce this policy. It is also best to receive signed acknowledgments from their employees that they have received and understand these policies or an acknowledgement over the email system. Some employers have a message that goes up each day when employees log onto their email accounts that they must click on before accessing their email. This is also an excellent practice, although it can be cumbersome.