In Holmes v Petrovich Dev. Co., 2011 Cal. App. LEXIS 33 (Cal. App. 2011), a California Court of Appeal held that emails an employee sent to her attorney were unprotected by attorney-client privilege because she sent them using her employer’s computer system. The court reasoned that the employee had knowingly disclosed the information to a third party because the employer’s handbook prohibited use of its computers for personal email and made clear that the company could monitor emails sent using its computers. Thus, the employee’s actions “were akin to consulting with her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard.” The employer introduced the emails at trial to show that the employee did not suffer severe emotion distress and filed suit only at her lawyer’s urging. This case underscores the importance of having a written policy regarding use of the employer’s information technology systems, clearly communicating that policy to employees, and having employees acknowledge receipt.
NEW YEAR REMINDER
With the start of a new year, California employers should make sure they:
- Have updated mandatory employment posters
- Review policies, forms, and handbooks to ensure compliance with the law
- Conduct sexual harassment training this year (if it was not conducted last year)