ACC Focus on the New Jersey Chapter - September 4, 2009 (Print All Articles)
NJCCA President's Message
by Valerie Camara
To the Membership,
Well August has been far from a quiet summer month for NJCCA, with hosting our Community Service Project for the second year: Build-A-Backpack Event and the finally planning for our Seventh Annual NJCCA Full Day Conference, our signature continuing legal education (CLE) conference.
On August 13, 2009 we had a great turnout by the membership to help pack the backpacks with school supplies. For more details please go to the photo-essay chronicling the evening. A small team is scheduled to deliver the backpacks on September 4th to the Kindergarteners at McKinley Elementary School in Newark, N.J.
A committee lead by Barbara Sellinger and Marty Carrara have planned a full day of CLE and professional development programs, with five tracks of programs, one of which is a plenary session and the others allowing for flexibility with six different programs to choose from. The Full Day Conference is scheduled for September 24, 2009 from 7:30am to 7:00pm at the Hanover Marriott in Whippany, N.J. This year the conference will begin with a Career Development Networking Forum for our in transition members, as well as those members that are just interested in networking with potential employers, recruiters, career coaches and consultants. In addition, we are very fortunate to have Michael Chertoff as our keynote luncheon speaker and cocktail hour with entertainment by a couple of Broadway stars to closeout the day. There is still time to sign up. For more details go to: LINK. We hope to see you at what will a jam packed day of substantive and professional development. programs.
The Seventh Annual NJCCA Full Day Conference is an opportunity to start banking your CLE credits for New Jersey. While the NJ Supreme Court has not yet unveiled its Mandatory CLE requirements, they issued a notice stating that the CLE accrued from January 1, 2009 forward (with a maximum of 24 credits) would be creditable towards your NJ requirements once the program is finalized.
The final major event for NJCCA is our Annual Dinner meeting that we will hold on November 19, 2009 at the Hanover Marriott in Whippany, N.J. The final details for this event are being worked out but I would ask you to hold the date, for what we hope will be an enjoyable evening.
If you have not already done so, there is still time to sign up for the ACC Annual Meeting which will be held in Boston, Massachusetts from October 18th to 21st.
Enjoy your last days of summer!!
New Jersey at the Forefront in Protecting Employees from Employer Intrusion into “Private” Electronic Communications
Matthew V. DelDuca and Terry D. Johnson
The proliferation of electronic media, such as e-mail, texting, MySpace, and Facebook, allow employees to communicate in and about the workplace more than ever before. Around the country, the courts have tried to apply existing legal theories to manage issues raised when employers seek to monitor employee electronic communications or to take action against employees for things they say in cyberspace. New Jersey is one of very few states in which private sector employees have a right of privacy in the workplace. Recent cases demonstrate how New Jersey courts have interpreted this right to limit the employer’s right to access and take action resulting from employees’ electronic communications.
Seventeen years ago, in a case involving random drug testing, the New Jersey Supreme Court held that private sector employees have a right of privacy in the workplace. Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 97-99 (1992). The right of privacy extends to those areas in which employees have “a reasonable expectation of privacy.” In the years since the Hennessey decision, many employers have implemented policies informing employees that any communications made on company computers or phones belong to the employer, and that the employee therefore has no reasonable expectation that those communications will be private.
In a recent case of first impression, the New Jersey Appellate Division recently held that, despite the company’s policy, private emails that an employee sent using a company issued laptop were not the property of the employer. Stengart v. Loving Care Agency, Inc., 408 N.J. Super. 54 (App. Div. 2009). Marina Stengart was the former Executive Director of Nursing at a home health agency in New Jersey, Loving Care Agency, Inc (“Loving Care”) who resigned from her position and filed an employment discrimination suit against Loving Care. After Stengart filed suit, Loving Care’s attorneys reviewed the hard drive of Stengart’s company-issued laptop and discovered that, before she resigned, Stengart had repeatedly used the company laptop to access her private, password-protected Yahoo email account and communicate via e-mail with her attorney about potential claims against Loving Care. The company’s attorneys accessed the e-mails without informing Stengart or her lawyers.
During the suit, Loving Care’s lawyers disclosed that they had obtained copies of the e-mails. Stengart immediately requested that Loving Care identify and return all copies of correspondence between Plaintiff and her counsel that were in Loving Care’s possession. When Loving Care refused, Stengart moved for a restraining order, arguing that Loving Care should be prohibited from using the emails because they were attorney-client privileged communications and that the company’s lawyers should be disqualified. The trial court denied the motion, finding that Loving Care’s electronic communications policy placed Plaintiff on notice that her emails were company property and that Stengart had therefore waived the attorney-client privilege. Stengart appealed. The Appellate Division granted interlocutory review.
The Appellate Division reversed. First, the court found that there were material factual disputes about the terms of the company policy and whether it had been communicated to employees, which the trial court did not properly resolve before rendering a decision. Second, the court found that the strong public policy supporting the attorney-client privilege outweighed any interest the employer might have to claim ownership of the e-mails. The court could have reversed based solely on those two fairly narrow grounds. The court did not stop there, however. The court went on to decide to what extent the employee’s right of privacy protects private e-mail communications in the workplace, even where the company’s policy clearly claims ownership of those communications.
The Loving Care court recognized that employers do have a right to monitor and regulate workplace communications. The court held, however, that this right is not limitless. Rather, the court held that, regardless of what the company’s policy provides, an employer does not own and has no right to access private employee communications unless the communication “should concern the terms of employment and ‘reasonably further[s] the legitimate interests of the employer.’”
The Appellate Division noted that its decision did not limit the ability of employers to “monitor whether an employee is distracted from the employer’s business” or to “take disciplinary action if an employee engages in personal matters during work matters.” Employers are prohibited from claiming ownership of an employee’s private communications or using the substance of those communications against employees.
The Appellate Division remanded the matter for entry of an order requiring Loving Care to produce all emails exchanged between Stengart and her attorney. The court also remanded for a hearing on whether defense counsel should be disqualified and sanctioned for viewing and using the privileged communications. Last week, the New Jersey Supreme Court granted certification in the case.
In another recent case of first impression, the United States District Court in New Jersey ruled in an unpublished opinion that an employer who asked an employee for access to a private MySpace group discussion page devoted to complaining about the employer may have violated federal and state law. Pietrylo v. Hillstone Restaurant Group, No. 2:06-cv-05754, 2008 WL 6085437 (D.N.J. July 25, 2008). The plaintiffs, Brian Pietrylo and Doreen Marino, were two former employees of a restaurant chain, Houston’s, who were fired for creating a MySpace group page called Spec-Tator as a place for Houston’s employees to “vent about any BS” they dealt with at work. The group was designated as “private,” meaning access to the group was limited to MySpace users who received an invitation to join the group. Pietrylo invited several past and present Houston’s employees to join Spec-Tator, including Karen St. Jean. St. Jean accepted Pietrylo’s invitation and became an authorized member of Spec-Tator. St. Jean informed a Houston’s manager, TiJean Rodriguez about Spec-Tator, and accessed the group on Rodriguez’s home computer so that Rodriguez could read the posts. The posts included vulgar and sexually explicit comments, as well as references to theft of an internal test, violence, and illegal drug use. Rodriguez was offended by the comments posted about him and reported the group to a senior Houston’s manager, Robert Anton. Anton approached St. Jean and asked her to provide him with her personal login information so he could access Spec-Tator. St. Jean did so. St. Jean later testified that, although Anton made no threats against her if she refused to provide him with access, St. Jean thought that she “would have gotten in some sort of trouble” if she did not cooperate. Anton accessed the group, and shortly thereafter, Houston’s terminated Pietrylo and Marino based on their comments on the site and their involvement in creating it.
Pietrylo and Marino sued, alleging that their terminations violated their rights to free speech, and public policy in the form of the common law right of privacy in the workplace, the federal Stored Communications Act, 18 U.S.C. §§ 2701-11 and the parallel State statute, N.J.S.A. 2A:156A-27. These statutes make it illegal for any person to intentionally access stored communications without authorization. Both statutes provide an exception, however, “with respect to conduct authorized . . . by a user of that service.” Houston’s moved for summary judgment on all of Pietrylo’s and Marino’s claims. The court granted Houston’s motion on the plaintiffs’ freedom of speech claim, holding that the company’s actions did not violate the plaintiffs’ right to freedom of speech.
The court denied Houston’s motion, however, with respect to the plaintiffs’ remaining claims. The court found that there was a question of fact as to whether St. Jean’s authorization to the company to access the MySpace page was truly voluntary or whether it was given under duress.
The court also found that there were jury issues on the plaintiffs’ privacy and public policy claims. The District Court ruled that there was an issue of fact as to whether the plaintiffs, as members of the MySpace group, had a reasonable expectation that no one outside the invited group would ever gain access. The court reasoned that although any member of the group could lawfully reveal the contents of the MySpace page to any other person, a jury could conclude that it was reasonable for members to assume that company officials would not gain access to the group’s discussions through duress. Since the court found a factual issue on duress, it also found a factual issue on whether the company violated the plaintiffs’ right of privacy. A jury verdict was later entered against Houston’s.
These cases drive home that the New Jersey courts recognize a broad right of privacy and consistently using that right to protect employees from employers who seek to use “private” electronic communications at or about work against employees. Employers should carefully evaluate their policies in light of these decisions and carefully evaluate all of the risks before accessing employees’ electronic communications or taking any action against employees because of what they say in cyberspace.
The NJCCA in Cyberspace - Online Professional & Social Networking For Lawyers: Utilizing LinkedIn and Martindale Connected
The NJCCA maintains a Chapter website on the Association of Corporate Counsel website at http://www.acc.com/chapters/njcca where we maintain this Chapter Newsletter. If you have not gone beyond the Newsletter, certainly surf our site as well as the separate features maintained by the ACC. The NJCCA is not stopping its presence in cyberspace there. With the growth of online communities as a means of networking, career development and as a research tool for the substantive provision of legal advice and other useful business information, the NJCCA has been developing an online social and professional networking strategy for your use.
First, the NJCCA recently established our own LinkedIn group at http://www.linkedin.com/groups?gid=1590257&trk=hb_side_g. Currently, this group is limited to in-house practitioners so when visiting, feel free to request an invitation if you qualify as a member. In addition to developing a LinkedIn network with other NJCCA members, we hope you will be interested in participating in online discussions on topics of interest to our community. Also, members can post job opportunities at your companies or inquire about jobs and post similar professional/social oriented information as well. We are looking for your creativity to decide how we utilize LinkedIn.
Further, the NJCCA has been working with Martindale Connected in order to develop a robust community that provides not only the means for social networking, but professional networking as well. Martindale Connected can be found at http://www.martindale.com/join.aspx?ReturnUrl=http%3a%2f%2fcommunity.martindale.com%2fdefault.aspx, you can register now for Connected if you are interested in joining Connected ahead of our group going live at the 2009 NJCCA All Day Conference. It is our intent to develop our Martindale Connected group as an information access and sharing hub for the NJCCA. We will detail our suggestions how you can use our Connected community later but the underlying objective will be to provide a home for you to talk to your NJCCA colleagues regarding the practice of in-house law, issues regarding the law and anything else on your mind. For example, we will initiate sub-groups for each NJCCA Committee so they can formulate their own private blog. As we recognize the need to protect client confidentiality, privilege and data privacy we are developing the site in a manner that facilitates conversation but accommodates your professional requirements. Bottom line we will create a tool for you to communicate with others about the practice of in-house law in New Jersey and it will be for all of us as NJCCA members to decide how we use it.
If anyone is interested in working with the NJCCA team on these initiatives (or any new ones), please contact Eugene Weitz at Eugene.Weitz@gmail.com.
7th ANNUAL NJCCA ALL DAY CONFERENCE
5 Program Tracks, Lunch, a networking Cocktail Reception featuring Broadway Stars, Prizes, plus 8.5 NY CLE credits.
We are very excited about our upcoming 7th Annual All Day Conference scheduled on September 24 at the Hanover Marriott Hotel, Whippany. There is a great line up of very important and timely programs where you can receive up to 8.5 NY CLE credits!
We are very fortunate to have a special Keynote Presentation
The conference will begin with a Continental Breakfast and will be followed by 5 Track Programs with varying program sessions within each track, morning and afternoon breaks, a buffet lunch and a wonderful networking Cocktail Reception featuring Broadway Stars, as well as, a Prize Drawing.
The registration process has been upgraded to make it much easier and faster for you to register for the conference, whether you are paying by credit card, an online payment via E-Check or a payment by mail to NJCCA (please include your confirmed program and registration information). You will also be able to register for programs directly on the registration site.
2nd Annual Back Packing Party
Inspired by the ACC's National Community Service Day, NJCCA fill backpacks with essential school supplies for inner-city kindergarteners.
Enthusiastic and energetic NJCCA members, family and friends gathered on August 12 to fill backpacks with essential school supplies for inner-city kindergarteners. Inspired by the Association of Corporate Counsel's National Community Service Day, the event was spearheaded jointly by Rebecca Brazzano of Thompson Hine and Valerie Camara of Merck & Co., Inc., who is NJCCA's president.
The 60 or so volunteers formed an awesome assembly line filing 100 backpacks with the supplies and a quality control crew then proceeded to review the 100 backpacks for completeness. The recipient school, McKinley Elementary School in Newark, New Jersey, was chosen based on financial need and logistical considerations. The Hanover Marriott provided a perfect venue for the evening. After filling the backpacks in record time the volunteers were able to network and enjoy some refreshments.
A small team of volunteers, including the project chairs, Rebecca Brazzano and Valerie Camara, will be on hand on September 4th to present the McKinley Elementary School kindergarteners with their new backpacks during a special assembly.
On behalf of NJCCA, I would like to thank all of our sponsors, donors and volunteers without who we could not have successfully completed this event.
Below are some photos from the packing event for your enjoyment!
NJCCA Board Profile - Eugene Weitz
Our ongoing series profiling NJCCA Board members.
1. Tell us a little bit about your personal background:
2. What was your first job?
3. What motivated you to become a lawyer?
Subsequently, I landed at Lucent which also merged into a French company, Alcatel-Lucent. Hired to help start up Lucent’s network operations outsourcing business, I eventually left the vendor side and began supporting “the customer”, Alcatel-Lucent’s IT organization. Concurrently, I started working with a former NJCCA Board member at Lucent on Law Department Knowledge Management and when he left Alcatel-Lucent, took over running a robust Global Law Department Knowledge Management program, the fruits of which I have been able to share in part with the NJCCA. I am leaving Alcatel-Lucent at the end of September and while I plan to remain wearing my IT lawyer hat, I am also focused on sharing my expertise in how a Law Department can survive and thrive in the 21st Century. I strongly believe on-line and other forms of cyber-connection are critical for the success of a distributed global (or domestic) Law Department. Alcatel-Lucent is off to a good start and I hope to share my expertise elsewhere – while remaining a contributing lawyer.
5. What do you find most rewarding about your job?
8. What do you like to do in your spare time?
9. Who would you most like to have dinner with?
A new feature, news about NJCCA members.
The Volunteer Lawyers for Justice's 4th Annual "Arts & Eats for Justice" Gala will be held on November 17, 6-9:30 at the Montclair Art Museum. The New Jersey Corporate Counsel Association has two member notes associated with this event.
Please attend the Gala, and support Elitza, Joe and the ongoing good work of the Volunteer Lawyers for Justice. You may even walk off with an original law-related piece of art.
Volunteer Lawyers for Justice's 4th Annual "Arts & Eats for Justice" Gala on November 17, 6-9:30 at the Montclair Art Museum. If you would like to attend the Gala, please use the attached Registration Form.
Upcoming NJCCA Events
Register today for these relevant and insightful events.
NJCCA's 7TH ANNUAL FULL DAY CONFERENCE
UNWRITTEN RULES: What You Don't Know Can Hurt Your Career
UNWRITTEN RULES: What You Don't Know Can Hurt Your Career
NJCCA's ANNUAL DINNER
OVERRULED! by Aronds
As far as we know, still the only Chapter Newsletter with its own in-house cartoonist!