California Labor Law: Work-related E-mails Trump Client-Attorney Privilege

Sacramento, CA When it comes to sending e-mails, it's a good idea for both employee and employer to check the company manual regarding computer usage policies before using e-mails sent from the workplace as evidence in a court of law, which could spell a violation of the California labor law.

The case of Holmes v. Petrovich demonstrates the importance of an employer's well-written communications and computer policy, and at the same time, how it would also benefit an employee to brush up on company policy before, say, sending e-mails to your attorney about perceived harassment and discrimination in the workplace.

In June 2004, Gina Holmes, the plaintiff, was hired as an executive assistant for Paul Petrovich and Petrovich Development Company, LLC, the defendant. About one month later, Holmes told Petrovich she was pregnant and requested a six-week maternity leave in December, which she later revised to a request for a four-month maternity leave starting in November. Petrovich wasn't thrilled with this news.

Petrovich and Holmes exchanged a number of e-mails, with Petrovich saying that he felt taken advantage of, but at the same time, he did not intend to violate any laws. (Discrimination due to pregnancy is in strict violation of the California labor law.)

Petrovich's e-mail to Holmes said that "I need some honesty. How pregnant were you when you interviewed with me and what happened to six weeks? . . . That is an extreme hardship on me, my business and everyone else in the company. You have rights for sure and I am not going to do anything to violate any laws, but I feel taken advantage of and deceived for sure."

In her e-mail to Petrovich, Holmes explained that she didn't tell him about her pregnancy sooner because she had previously had two miscarriages and wanted to make sure that this time the baby would be carried to term.

Holmes also e-mailed an attorney from her work e-mail account indicating that she felt she was working in a hostile environment and also e-mailed Petrovich to inform him that his feelings regarding her pregnancy left her with no alternative but to end her employment.

But Petrovich was concerned that Holmes would quit and had already forwarded her e-mail to HR??"before she gave notice.

Next up, Holmes filed a suit for sexual harassment, retaliation, wrongful termination, violation of privacy rights and intentional infliction of emotional distress.

The Trial

At trial, the jury was shown several e-mails between Holmes and her attorney. Holmes argued that these e-mails were attorney-client privileged. The trial court, however, ruled that Holmes's e-mails, sent on a company computer, were not protected by the attorney-client privilege because they were not private; furthermore, company policy was in black and white and stated that:

- Company technology resources should be used only for company business and employees are prohibited from sending or receiving personal e-mails;
- Employees have no right to privacy for personal information created on company computers;
- E-mail is not private communication;
- The Company may inspect all files or messages at any time; and
- The Company would periodically monitor technology resources for compliance with Company policy.

Holmes sent the e-mails to her attorney even though she had read and signed the company's express computer technology resource policy that governed her usage of the company computer and e-mail account, after she was hired. Specifically,

- She had been told of the company's policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail;
- She had been warned that the company would monitor its computers for compliance with this company policy and thus might "inspect all files and messages ... at any time;" and
- She had been explicitly advised that employees using company computers to create or maintain personal information or messages "have no right of privacy with respect to that information or message."

After the Sacramento Superior Court, Judge Chang, granted summary adjudication on the discrimination, retaliation, and wrongful termination causes of action, a jury found for the defendants on the two remaining causes of action, i.e., violation of the right to privacy, and intentional infliction of emotional distress. Holmes appealed, and the Court of Appeal affirmed.

On appeal, the court described the communications as "akin to consulting 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 by him."