Really? You thought a Facebook post was private?
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this area of law is still developing, some courts have set forth guidelines for determining whether such employee communications remain private. For example, a federal court in the Southern District of New York developed a four-factor test to evaluate claims of privilege for e-mails sent from or through an employer device or system:
1. Does the employer maintain an e-mail policy banning personal or other objectionable use?
2. Does the employer monitor the use of the employee’s computer or e-mail?
3. Do third parties have a right to access the computer or e-mails?
4. Did the employer notify the employee, or was the employee aware of the use and monitoring policies?
The most determinative of these factors was whether the employee was using a work e-mail account, or a password-protected personal e-mail account.
Some courts have held that employees have a reasonable expectation of privacy with respect to e-mails sent to or from an attorney via a personal e-mail account, such as a Yahoo!, Hotmail, or Gmail account, from a work computer. In one case, Strengart v. Loving Care Agency, Inc., 201 NJ 300 (2010), an employer sought to gain access to e-mails sent by a (soon to be) former employee who communicated with her attorney about suing her (then) employer. Her e-mails were sent from her personal e-mail account, but on her company-issued computer and via the company’s provided Internet access. Ultimately, the New Jersey Supreme Court held that the communications were confidential and privileged, in large part because the company’s computer policy did not expressly reference personal e-mail accounts, and thus the employee did not have express notice that the e-mails sent or received from her personal account were subject to monitoring.
Conversely, other courts have held that privilege did not exist. A federal district court in New York, for example, in In re Reserve Fund Securities and Derivative Litigation, 2011 WL 2039758 (S.D.N.Y. May 23, 2011), held that although the communication between a husband and wife would normally be protected by what courts refer to as the “marital privilege
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