Tag Archives: Stengart v. Loving Care Agency

NJ Supreme Court Restricts Employer’s Ability To Review Employee’s Communications With Personal Attorney on Employer’s Computers

While many employers worry that some court decisions will add “insult to injury,” New Jersey employers must now be aware of Stengart v. Loving Care Agency Inc., — A.2d –, — N.J. — (2010), decided March 30, 2010, which presages adding “injury to injury.” That is because it first injures employers’ interests by stating that an employer cannot write an enforceable policy that “ban[s] all personal computer use and provide[s] unambiguous notice that an employer could retrieve and read” all emails that an employee wrote through a personal email account using an employer’s computer. Slip op. at 28. InStengart, this meant that an employee’s communications with personal counsel concerning matters adverse to the company may occur during work time using the employer’s resources. And if that were not injury enough to the employer’s interests in having employees actually work on company business while at the office using the company’s resources, the Stengart Court then went on to add another possible injury—on remand, the trial court should consider disqualifying the company’s counsel for not immediately upon finding such communications on the employer’s computer returning to the departed employee (or her counsel) all copies of such communications. The Stengartdecision demands that employers, especially in New Jersey, not only revisit their written policies, but also that they consider how such policies are actually being applied and enforced. Decisions like Stengart can also directly impact on steps that have become part of best practices responses in trade secret and restrictive covenant cases involving departing employees, and which occur in all manner of employment situations.

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