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Handbook Defeats Employee Claim of Attorney-Client Confidentiality

Cover of an employee handbook

In “Inspection of Employee Text Messages ? Be Careful“, I described provisions concerning company-provided technology that every employer should include in its employee handbook. A recent California Court of Appeal case, Holmes v. Petrovich Development Co., shows that such provisions are strong enough to defeat a claim of attorney-client confidentiality!

Gina Holmes brought suit against her former employer, alleging sexual harassment, wrongful termination and other causes of action. The employer presented as evidence e-mails between Holmes and her attorney – e-mails sent from her employer’s computer – that supported the employer’s case.

Holmes argued that the e-mails should not be admitted because they were confidential attorney-client communications. The court disagreed, ruling that admission of the e-mails into evidence was appropriate and stating (emphasis added):

This is so because Holmes used a computer of defendant company to send the e-mails even though (1) she had been told of the company’s policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had been warned that the company would monitor its computers for compliance with this company policy and thus might “inspect all files and messages . . . at any time,” and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message.”

The factors cited by the court are quite similar to the suggestion in my earlier post that employee handbooks include the following:

  1. Policies that are? broad enough to cover all technology resources.
  2. A policy stating that company-supplied technology is to be used only for company business purposes.
  3. Notice to employees that they should have no expectation of privacy with respect to (a) use of company-supplied technology and (b) any information that is obtained or produced while performing their duties for the company, irrespective of where the information may be stored.

Bottom line:

  • If you are an employer, put the foregoing provisions in your employee handbook.
  • If you are an employee, don’t use employer-provided technology to send sensitive or confidential information.

Photo credit: iStockphoto

Dana H. Shultz, Attorney at Law? +1 510 547-0545? dana [at] danashultz [dot] com
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