Archive for March, 2010

Stengart v. Loving Care
NJ Decision on Monitoring of Employee Email
Contributor: Doug Cornelius
SUMMARY: The New Jersey Supreme Court has ruled on the appeal and found that the employee
“could reasonably expect that e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account would remain private, and that sending and receiving them using a company laptop did not eliminate the attorney-client privilege that protected them.”
The court’s decision focused on two areas: the adequacy of the company’s notice in its computer use policy and the importance of attorney-client privilege.
The court was not swayed by the company’s arguments about its computer use policy. The company took the position that its employees have no expectation of privacy in their use of company computers based on its Policy. The court found that the policy did not address personal email accounts at all and therefore had no express notice that the accounts would be subject to monitoring. Also, the policy did not warn employees that the contents of the emails could be stored on a hard drive and retrieved by the company.
The bigger problem was that the communications between attorneys and their client are held to a higher standard. They were not “illegal or inappropriate material” stored on the company’s equipment that could harm the company. The e-mails warned the reader directly that the e-mails are personal, confidential, and may be attorney-client communications.
In my opinion, the nature and content of these emails made this an easy decision for the court.
The decision does not mean that a company cannot monitor or regulate the use of workplace computers.
* A policy should be clear that employees have no expectation of privacy in their use of company computers.
* A policy needs to explicitly not address the use of personal, web-based e-mail accounts accessed # through company equipment.
* A policy should warn employees that the contents of e-mails sent via personal accounts can be forensically retrieved and read by the the company.

So this case appears to be limited to an employees personal e-mails on a company computer. What do you all think about whether an employee has a right to privacy in their e-mails on their employer’s computer?

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If you have lost your job one of the very typical questions that I will get is whether after being terminated you still get your vacation or sick pay that you earned. Generally, the first place you should look to determine this is what the employment handbook of your employer has to say on the issue. A good employment manual from an employer should spell out what happens with your vacation or sick pay after you leave employment. If the employment manual does not address it, and if the vacation or sick pay is earned, then my advice normally is that you are entitled to be paid that vacation pay after termination or leaving your employment. Of course, this issue may be affected by laws in your state, so make sure to consult with an employment law attorney in your state before proceeding with any action.

Another issue that frequently comes up is whether you are entitled to receive commissions you earned during your employment that have not yet been paid to you. In most instances you are entitled to be paid these commissions with one general exception. In some cases, if receiving your commission was based upon providing service to the customer after the sale, the employer may have a basis to not pay you your commissions. In addition, most good employment manuals will address in detail what happens to your commissions when your leave the employment of your employer.

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In today’s economy, more and more, people are losing their jobs. In many instances it has nothing to do with work performance, but just the fact that the employer is scaling back for budgetary reasons. On many occasions, when an employee has worked for years with a company, without any performance issues, the overall feeling with the employee is “how unfair.” In most states, including the one where I primarily practice, Florida, fairness does not matter when you lose your job. Since Florida is an employment at will state, an employer can fire you for any reason at all as long as it is not a violation of a contract or Federal or state law. On many occasions, the employee will want to know whether they are entitled to severance or not. In Florida, and most other states, an employer is not required to give severance pay to its terminated employees. So, if your employer is offering severance pay, it may be a good thing. However, in most cases, an employer will only pay severance after the employee signs a severance agreement which will usually contain releases of any legal rights you may have against your employer. So in most cases, you should have an attorney review your severance agreement. First, you want someone to look at it and explain its terms to you. Second, you want someone to advise you whether you are giving up some legal claims that you have against your employer that may be worth more than the severance being offered. In some instances you may also be able to have an attorney negotiate the terms or amount of your severance agreement.

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In most cases, a non-compete agreement will refer to all of the confidential and valuable information that your employer has given to you while employed for them and that this is the reason why the non-compete is so important. On many occasions you will see this type of information referred to as “trade secrets” which is the legal term for all of the secret information that your employer trusted you with. But guess what? In most instances you were not really provided with trade secrets. A real trade secret would be something like Colonel Sanders secret recipe for Kentucky Fried Chicken or the formula for Coca-Cola. There are other lesser known examples of “trade secrets” with many employers though. So how do you know if trade secrets were really given to you? Well, first the information provided to you would not be information generally known in the industry. So if you have been in the industry for ten years and every other company does the same thing, well, that’s probably not a trade secret. Normally, there would be extra efforts taken to ensure its secrecy such as extra computer security. In addition, if it is derived from publicly available resources that is generally not a trade secret. For instance, if your employer has a customer list that is obtained from the internet or cold calling or the phone book, its probably not a trade secret. And in most cases, if the employer can’t show the secrets it is protecting with the non-compete, its probably not enforceable.

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In reviewing a non-compete agreement you want to also make sure that you consider the state in which you are employed. While some states enforce non-competes freely, like Florida, in some other states it is very difficult to enforce non-competes (i.e. California and Colorado). In addition, depending upon which states law applies to your non-compete agreement, there are many differences in how a non-compete may be applied and enforced. So how do you know which state’s law applies to your non-compete agreement. First, look to see whether your contract has a “choice of law provision” which specifies which State’s laws is applied to your contract. Even where there is a choice of law provision, there are arguments to be made against enforcement of them where the contract seeks to use a state’s laws that are less favorable than the state in which you are employed. If there is no choice of law provision, then most likely the law that will apply will be the one of the state where you are employed.

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More and more people are being asked to sign non-competes during the course of their employment. Typically the employee is not given a choice on whether to sign one, they are required to do so if they want their job. While the law on non-competes varies from state to state, not every non-compete will be enforceable against an employee. You should have a lawyer review the terms of the agreement and discuss them with you. For instance, in most cases, the area that the employer can keep you from working in must be reasonable in scope. Might be reasonable to restrict you from working in one state but not the whole country. Most non-competes must also be reasonable in duration, generally one or two years would be considered reasonable while five or ten years probably not reasonable. The non-compete should also be limited to the industry you actually worked in. Generally an employer can’t keep you from working in a field that you did not work for them in. In addition, your non-compete may be unenforceable where the employer violated some terms of its employment agreement with you (ie. did not pay your compensation or wrongfully terminated you).

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In our difficult economic climate, with more and more people finding themselves unemployed, this blog will attempt to address legal issues facing employees in the workplace both during their employment and after. Hopefully it will be of assistance to you. Feel free to post any questions you may have or comments on any of my posts

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