New Jersey Employment Lawyer Blog

I often read status updates on sites like Facebook, LinkedIn and Twitter reflecting my friends' feeling about their work, bosses, and co-workers. It is worth a reminder that such postings potentially can be used against you in an employment law case, such as a discrimination, harassment, or retaliation lawsuit. If your profile is public, or if one of your supervisors is your "friend," your employer will have easy access to that information. But your employer might be able to obtain the information in a lawsuit even if it was originally visible only to individuals who you have accepted as "contacts" or "friends."

For example, one of my clients recently received the following request from a large law firm that represents employers:

Produce a copy of the contents of Plaintiff's account on any social media websites, such as Facebook, MySpace, Twitter, LinkedIn, etc.

I intend to object to this request because it is nothing more than a fishing expedition, and the employer is seeking information that is not relevant to the case. But there are many ways in which your posts may be relevant to an employment law matter. For example, if you are having a good day at work and post "I love my job," that could be used against you to prove you did not experience a hostile work environment, and therefore harm your harassment claim. On the other hand, if you express negative feelings about your boss, co-workers, clients, or customers, then you could be accused of disparaging your employer, which could violate an internal company policy, your employment contract, or your duty of loyalty to your employer.

It is important to realize that, unless you delete it, all of the data you have posted on Facebook, including wall posts, photos with comments, videos, private messages, friend lists and other user profile content, remains accessible in an archive that is fairly easy to retrieve. You can download it from the Account Settings menu. Thus, even very old posts could hurt you if the employment relationship goes bad. Be very careful about what information you post about your job on social networking websites. At the very least, you should not post anything about your current or former employer that you would not want the employer to read.

However, once you are considering filing a lawsuit, you cannot erase your archive because you would be destroying potential evidence in your case, and you could be penalized. For example, in Lester v. Allied Concrete, a plaintiff who prevailed in a wrongful death case was ordered to pay a $180,000 fine for deleting his Facebook profile.

Continue reading "Beware: Your Boss Might Read Your Posts on Social Networking Sites" »

On June 26, 2009, in Stengart v. Loving Care Agency, Inc., New Jersey's Appellate Division ruled that confidential emails employees send to their lawyers using company computers are protected by the attorney-client privilege.

Under the attorney-client privilege, communications made in confidence between lawyers and their clients in the course of their professional relationship are privileged. The primary reason for the attorney-client privilege is to encourage clients to engage in a full and free disclosure of information with their lawyers.

In Stengart, employee Marina Stengart was still working for Loving Care Agency, Inc., when she emailed an employment lawyer about her potential discrimination case. She sent emails to her attorney, using her private Yahoo email address, from her company-issued laptop.

After Ms. Stengart left Loving Care and filed a lawsuit, the company created a forensic image of her computer's hard drive. The lawyers representing Loving Care discovered numerous communications between Ms. Stengart and her lawyers in her computer's Internet browsing history. When Ms. Stengart's lawyers learned that Loving Care had copies of many of her emails to them, she asserted the attorney-client privilege and demanded that Loving Care return them to her. She also sought to disqualify Loving Care's lawyers since they had unfair access to her privileged communications with her lawyers.

Prior to the appeal, based on the company's electronic communications policy, the trial court ruled that Ms. Stengart did not have a reasonable expectation of privacy when she used her company laptop to communicate with her lawyers. Accordingly, it found that the emails were not protected by the attorney-client privilege.

However, the Appellate Division disagreed. It ruled that it was unclear whether the company's electronic communications policy prohibit Ms. Stengart from using her company laptop to email her lawyers, since it expressly permitted some personal use.

More importantly, the appellate court also found that, even if Ms. Stengart had violated the company's email policy, the attorney-client privilege outweighed her employer's interest in enforcing its electronic communications policy. It noted that while employee handbooks can create binding employment contracts, New Jersey courts will not enforce unreasonable workplace rules and policies. More specifically, courts will only enforce employment policies if they advance the "legitimate business interests of the employer." Accordingly, the Appellate Division rejected what it described as "the employer's claimed right to rummage through and retain the employee's emails to her attorney."

The Court noted that people conduct many personal and confidential transactions via the Internet, including accessing private medical records, viewing bank account data and telephone records, filing tax returns, and emailing attorneys about confidential matters. It indicated that those individuals have a reasonable expectation that their private communications will remain private, even if they review the private information on a company computer. However, the Court made it clear that companies are entitled to monitor whether their employees are performing non-business activities that distract them from their work, and can discipline employees who engage in personal matters during working hours.

From the standpoint of employees, random drug testing policies can be invasive, offensive, and a violation of their right to privacy. For example, drug testing can reveal information about an employee’s medical condition or prescribed medication, even when the employer has no legitimate right to that information. In contrast, from the standpoint of a private company, random drug testing can be an effective tool to limit workplace accidents, theft, and poor job performance.

Given those competing interests, when determining whether a private company’s random drug testing policy is an impermissible invasion of privacy, New Jersey law requires a balance between the employee’s privacy interests against the public interest being advanced by the employer. In New Jersey, an employee who is fired for refusing to participate in a private company’s random drug testing program may have a legal claim for wrongful discharge in violation of public policy if the employee was fired for refusing to submit to random drug testing and the employee’s privacy interest outweighs the public interest in favor of the testing.

Determining if the public interest outweighs the right to privacy for a particular random drug testing program is a difficult question. To make that determination, a court has to balance the employee’s right to privacy with employer’s reason for testing. For example, the New Jersey Supreme Court has found that if an employee’s duties are “so fraught with hazard that his or her attempts to perform them while in a state of drug impairment would pose a threat to co-workers, to the workplace, or to the public at large, then the employer must prevail.” Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992). Some of the factors used to determine the public policy interest in favor of testing include whether there is any evidence of drug use by employees, the potential dangers of the employee’s job, how long the drug testing program has been in place, and whether the employer can effectively detect drugs without testing, such as by having supervisor observe employee behavior.

While not legally mandated, the New Jersey Supreme Court has strongly recommended that employers that have random drug testing programs should take steps to minimize the intrusiveness of the process. This includes making sure the testing procedures allow employees to maintain as much privacy and dignity as possible, and that employers announces the program to their employees in advance, provide details about the method for selecting employees to be tested, warn employees of the lingering effect of certain drugs, explain how the testing and analysis will be conducted, warn employees of the consequences of testing positive or refusing to take the test, only conduct tests necessary to determine the presence of drugs in the urine, and take measures not to disclose any information obtained as a result of the testing.

In short, while New Jersey law recognizes that random drug testing can be an invasion of privacy, testing is permitted if that privacy right is outweighed by the public interest supporting the testing. While in some instances it may be very clear that drug testing is permissible, such as when an employee operates heavy machinery or drives as part of his job duties, in many instances it is difficult to know whether a private company’s random drug testing program violates your right to privacy. If you believe your company’s random drug program may be a violation of your rights, you should consider contacting an experienced employment lawyer to learn more about your legal rights.

The lawyers at our employment law and civil rights law firm, The Nirenberg Law Firm, LLC, are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.