Employment Law Monitor : Employment Lawyer & Attorney : Cole Schotz Meisel Forman & Leonard Law Firm : NJ, Mid-Atlantic Wage & Hour, Wrongful Termination

On January 15, 2010, Governor Christie signed into law a bill clarifying the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-1, et seq., as it applies to persons with a developmental disability. This law amends the definition of “disability” in the NJLAD to expressly include “autism spectrum disorders.” N.J.S.A. 10:5-5(q).

In light of the amendment, employers should review their equal opportunity and anti-discrimination policies to ensure those policies comply with the amended law.
 

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On April 22, 2009, we wrote about Stengart v. Loving Care Agency, Inc., a case in which the New Jersey Superior Court held that an employee who used her personal web-based Yahoo email account on the company’s computer to communicate with her attorney waived her attorney-client privilege. In a sharp rebuke of the trial court, on June 26, 2009, the Appellate Division reversed the lower court’s decision and held that, “the policies undergirding the attorney-client privilege substantially outweigh the employer’s interest in enforcement of its unilaterally imposed regulation…” In so holding, the court first recognized the ambiguities in the employer’s handbook policies. While some policies clearly indicated that employees could not hold an expectation of privacy in their email communications, whether on the company computer or their web-based email accounts, other provisions conflicted and provided for occasional personal use. Notwithstanding these ambiguities, the court went on to find that the attorney-client privilege outweighs the “company’s claimed interest in ownership of or access to those communications based on its electronic communications policy.” Thus, although the Appellate Division’s decision confirms the importance of properly drafting handbook policies to protect a company’s interests, it leaves open the question of whether a company’s electronic communications policy could ever trump the attorney-client privilege.

Finally, the court went on to remand the matter for a hearing as to whether Loving Care’s attorneys should be disqualified as counsel given their review of Ms. Stengart’s emails to her attorneys.
 

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In the midst of recent and widespread fear and panic surrounding the H5N1 swine flu virus, many employers are appropriately inquiring as to how they can protect their operations, employees, clients and customers from outbreaks and pandemics including the current swine flu and even the avian flu of years past.

Any actual or potential outbreak necessarily poses many legal employment issues including those relating to safety, health/medical leave, reasonable accommodation, privacy/confidentiality, shortage of staff, compensation, travel restrictions, communication, revenue/cash flow and possible reductions in force.

What do these issues mean for employers? First, employers should take this opportunity to develop a communicable disease policy, which may address (i) any employee obligations to report a diagnosis or symptoms of any communicable disease and/or any travel to areas in which the employee may have been exposed; (ii) any travel restrictions to be imposed on employees; and (iii) any infection control and/or personal protective equipment plans and practices. Employers should also develop business continuity/strategic plans and policies, which address all aspects of the company in the event of an outbreak including communications, information technology (including remote access systems), health/medical, legal, the appointment of crisis teams/captains and other related issues.

Employers must also plan for the impact that any outbreak may have on their business function and must consider how the company will operate without key employees, suppliers, materials, etc. Lining up alternate vendors, cross-training employees, and developing a backup plan in the event that travel is restricted or eliminated will all serve a company very well during any pandemic. Similarly, companies must prepare for the impact of any outbreak on employees. In particular, employers should consider and address the effect of employee absences, and how the company can reduce face-to-face contact, track vaccine information and monitor employee access to healthcare, mental health, and special needs.

While the current swine flu outbreak may not develop into the plague forecast by the media, employers should take advantage of the warning it provides to develop and ensure their communicable disease and business continuity plans and procedures are in place and appropriate to protect valuable business interests.

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Recently, in State of New Jersey v. M.A., the New Jersey Appellate Division held that an employee did not have any expectation of privacy in the contents of his work computer. In M.A., the employee was terminated and the employer reported to the police that the employee had engaged in theft of company funds. The police conducted a warrantless search of two computers in the employer’s possession. One of the computers was maintained in the former employee’s office and the other was a laptop shared by the former employee and a co-worker. The former employee had created confidential passwords on both computers to block access to his personal information. At the employee’s criminal trial, the employee claimed that the search of his computers constituted an unlawful search.

The court, relying on several facts, rejected the employee’s argument. The key facts included: both computers searched were owned by the employer and maintained in the employer’s place of business; all employees had been advised upon hiring that all workplace computers were property of the employer; the desktop computer that was searched was connected to the employer’s network, giving the employer equal access to it; the laptop searched contained the employer’s business software and was shared by another employee; and lastly, the employee’s office was never locked.

Although a criminal case, this case highlights the importance of employers implementing and distributing a clear and unambiguous written policy informing employees that their work computers are the employer’s property and no employee should have any expectation of privacy in any materials contained therein. Employers should also be cautious about giving employees exclusive access to any computer.

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The most recent case to highlight the importance of having properly drafted electronic personnel policies is Stengart v. Loving Care Agency. In Stengart, the New Jersey Superior Court held that an employee who used her web-based Yahoo email account on the Company’s computer waived her attorney-client privilege. In Stengart, the employee emailed her attorney during business hours from the laptop issued to her by her employer, Loving Care, before she left its employ. 

After Stengart brought suit alleging hostile workplace and constructive discharge claims against Loving Care, the Company conducted a routine review of her computer to comply with the Court’s discovery rules. During this review, the Company came upon the privileged communication. While Stengart argued that the email should be returned or destroyed and the Company had no right to retain it, Loving Care countered that Stengart waived the privilege by communicating with her attorney on Company time and through the use of a Company-issued laptop. Importantly, the Court relied upon the Company’s comprehensive handbook provisions that prohibited employees from using the email system for “employment activities outside the scope of the Company business” or for “solicitation or outside business ventures.” Moreover, the Court cited the Handbook’s provision that emails sent on the Company’s server are not to be considered private or personal to any employee. Finally, the Court noted that Stengart herself helped create and distribute the Handbook and, therefore, she could not reasonably claim that she was unaware of the policy. 

This decision confirms the importance of having properly drafted email, computer and personnel policies.

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