Q&A with Susan B. Loving
Be cautious using work email
Q: Is it wise for employees who suspect they may be fired to use their work email to communicate with their attorneys?
A: You should certainly be extremely cautious in communicating with your attorney through any email account to which any others could have access. You would be well-advised to cease all email activity from any computer other than your own, and any email account others may have access to.
Q: What about attorney/client privilege?
A: In deciding whether attorney-client communications through an employer's computer are protected from disclosure, courts generally look at four factors: whether the employer has a policy banning personal or other uses of employer-provided computers; whether the company monitors the general use of employee computers, and/or email; whether the computer is shared with others and if the password is confidential; and whether the employee is aware of these use and monitoring policies. Another issue is whether the employee is using his or her employer-based email address, or a separate web-based address, such as hotmail. Many employees believe if they use a separate email address, their communications are protected, even if they occur at work on an employer-provided computer. And in some instances, this does make a difference. If the employer's policy is not clear on this issue, a court might find the employee had a reasonable expectation of privacy. However, this area of law is not clear, thus caution is advised.
Q: Can't I just delete them before they are seen?
A: Deleting email does not mean it is truly gone. Metadata, which is information embedded in communications and transferred along with documents, may also be present. The bottom line is caution is advisable in communicating through email, regardless of what the employer's policy appears to be.
PAULA BURKES, BUSINESS WRITER