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Superior Court Judge Estela M. De La Cruz, sitting in Hackensack, said a jury could find that the high-ranking executives all participated, promoted or were indifferent to a hostile work environment at the Loving Care Agency, which sought to have the case dismissed.
De La Cruz’s ruling follows a decision by the state Supreme Court that Marina Stengert had a reasonable expectation of privacy when she used her own email account on a company computer to communicate with her lawyer.
The Supremes’ decision is one of the first to directly address what employers can and can’t do when it comes to online exchanges via private emails on their servers. It has many of them reviewing their existing policies, trying to figure out what is or isn’t legit.
Now that the question has been resolved by the state’s highest court, a trial can begin based on Stengert hostile workplace suit, which alleges discrimination, harassment and retaliation by her former bosses.
While working as Loving Care’s director of nursing, Stengert used her own password-protected Yahoo! account on a company-issued laptop to exchange messages with her lawyer about pursuing the suit. What she didn’t know was that Loving Care’s browsing software automatically cached copies on the laptop’s hard drive.
When she left after 15 years with the company, Stengert returned the company computer. Two months later, she filed her lawsuit.
Loving Care hit back with copies of the emails, which it said it planned to use during the trial. When Stengart’s lawyers insisted they were privileged, Loving Care contended that she had no expectation of privacy under the company’s policy for electronic communications.
De La Cruz sided with the company, saying they could introduce the private communications as evidence.
Stengart appealed, and the trial was put on hold while her lawyers argued that Loving Care never warned her that it would monitor the contents of privately intended e-mail sent from a personal account, much less save them on a hard drive and then produce them as evidence in a lawsuit.
Using the company laptop didn’t automatically void her attorney-client privilege, as Loving Care had argued, they said. By using a password-protected account, and not leaving the password on her computer, Stengert’s lawyers said, she was being circumspect, keeping the matter confidential. And that, they argued, is how her exchanges should have remained.
A state appeals court agreed, reversing De La Cruz’s decision. So did the state Supreme Court, upholding the appeals court ruling and sending the case back to Hackensack for trial.
Company policy “did not give Stengart, or a reasonable person in her position, cause to anticipate that Loving Care would be peering over her shoulder as she opened e-mails from her lawyer on her personal, password-protected Yahoo account,” the Supremes wrote, in their decision.
The state’s highest court likened it to “the highly impermissible conduct of electronically eavesdropping on a conversation between plaintiff and her attorney while she was on a lunch break.”
To avoid any misunderstandings in other cases, the Supremes added a proviso: “Our conclusion that Stengart had an expectation of privacy in e-mails with her lawyer does not mean that employers cannot monitor or regulate the use of workplace computers.”
Companies have every right to protect their assets, reputation, and productivity, while making sure their employees comply with all policies, the justices said. “But employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy.”
Therein lies the difference: Stengert used her own private account, not company e-mail.
So now the matter is back in Bergen County. Unless there is some kind of settlement, a jury will be impaneled, and the harassment/discrimination case will go to trial.
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