Can my employer read emails from my lawyer in my private account?

Question:

I complained to our HR department about my manager recently. He won't stop asking me out and making sexual comments about me to my coworkers, even though I've told him that I'm not interested and that he's making me really uncomfortable. The HR director said she would investigate. She said that as part of the investigation, the company would look at all of our emails to each other. It makes sense for the company to look at our work emails because some of my manager's inappropriate comments were sent to me electronically. However, I have a concern about my personal email account, which I use on my work computer. I've been corresponding with a lawyer about my situation, and those emails are stored in my personal account. Can the company access those? Do I have a legal right to keep them private?

Answer:

A few courts have considered this very question. Generally, they have found that emails sent to and from an attorney on a personal email account are private, even when they are accessed on a work computer.

The general rule for sending email on an employer's email system is different. Every court to consider the issue has found that emails sent or received on a work email account are not private. That is, courts have found that employers may access, monitor, and read messages sent on the employer's own email system. This is true even if the employer never warned employees that their emails are not private, and even if the employees took steps to try to protect the confidentiality of these emails, such as labeling them "private."

When it comes to personal email accounts accessed on the employer's equipment, the rules are murkier. However, emails to an attorney fall into a special category. They are protected by the attorney-client privilege, an age-old legal principle that renders communications with a lawyer confidential, not to be revealed to anyone outside the relationship (although there are a few, limited exceptions).

Had you sent the emails on your work email account, you might be out of luck. At least one court has found that an employer with a clear policy informing employees that their business emails are not private has the legal right to inspect all communications using that account, even those with an attorney. By disregarding the employer's policy, the employee was found to have waived the attorney-client privilege.

However, courts have ruled otherwise when the employee uses a personal account to communicate with a lawyer. In these cases, employers are not permitted to intrude upon the private communications. Of course, it would be better not to use the employer's equipment for such delicate matters. However, chances are good that your employer won't have the right to look at these messages. Just to make sure, though, you should definitely get in touch with your lawyer -- preferably by phone or using your home computer.

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