The California Second District Court of Appeal issued its opinion in Militello v. Farm 1509 in March. The case arose between former business partners over a dispute centering on their vertically integrated cannabis business.
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 the defendant did not hold a reasonable expectation of privacy in 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 found Mitello’s position unpersuasive, significantly because there was no evidence of the company’s workplace policies showing that the defendant was aware of or even agreed to any email monitoring practice. The Court held that in the absence of such evidence, the emails remained confidential and privileged.
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.
Based on the holding in Militello, 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. Lack of such a policy and practice could result in 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.
Although the Court provided no guidance on the contents of a compliant policy, the written policy 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).
The policy needs to be uniformly enforced. Best practices dictate receipt of signed Employee acknowledgments of receipt and understanding of these policies.
Before you commence monitoring employee emails, contact your business attorney to ensure the proper written policies are in place to allow you to do so with violating your employees’ rights to privacy.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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