State of New Jersey v. M.A., A-4922-06T4 (App. Div., August 29, 2008) – In a criminal case having ramifications in the employment context, the Appellate Division held that an employee had no expectation of privacy in the contents of his work computers. The computers in question had been purchased by the employer from the employee, who operated a computer business on the side. After the purchase, one computer was maintained in the employee’s private office; the other was a laptop shared by a co-worker. The employee had created confidential passwords on both computers to block access to his personal information.

The employer terminated the employee and reported to the police that the employee had engaged in theft of company funds. The police conducted a warrantless consent search of the computers, which the employee claimed at his criminal trial constituted an unlawful search. The Court rejected the employee’s arguments, holding that he had no reasonable expectation of privacy in either of the computers. Key to the decision was the fact that: both computers were owned by the company and maintained at the employer’s place of business; all employees had been advised upon hiring that all workplace computers were company property; the desktop computer was connected to the company network, giving the employer equal access to it; the laptop contained company business software and was shared by another employee; and the employee’s office was never locked.

This decision again highlights the critical importance of implementing and distributing a clear and unambiguous written policy informing employees that their work computers are the company’s property and that there is no expectation of privacy in any materials contained therein. Employers should also be cautious about giving employees exclusive access to a computer and permitting them to block others completely from their work space.