In Sexual Harassment Case, California Court Of Appeal Upholds Employer’s Inspection And Use Of Employee’s Personal Emails


In today’s workplace, employers periodically consider whether—and under what circumstances — they may inspect employee emails. The issue may arise in the context of a sexual harassment investigation, concerns that an employee has compromised company trade secret information, workplace safety threats, or many other potential inquiries into workplace misconduct matters. While employers commonly believe that an employee has no expectation of privacy with respect to email created using a company’s computer, stored on its network, or sent or received using a company-supported email or messaging system, legal issues do exist. A well-drafted company policy improves an employer’s odds in defeating an employee’s assertion that he or she enjoys a right to privacy in “personal” email in the workplace. A recent case, Holmes v. Petrovich Development Company, LLC, provides further guidance for employers on how to maximize their discretion to inspect employee emails should they desire to do so.

In Holmes, a California Court of Appeal faced the question of whether an employee had a reasonable expectation of privacy in personal emails sent to her attorney via her employer provided email account and using its computer. As discussed below, the court held that the employee did not have a reasonable expectation of privacy due, in large part, to the employer’s strict technology resources policy. The case is instructive with respect to the effect that an electronic resources policy can have on an employer’s right to access and inspect an employee’s emails.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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