Probably not. If you work in California, or are otherwise subject to California law, I recently saw this article which again highlighted the oft-repeated warnings of many in the legal profession not to use your company’s e-mail to send out information that you deem to be confidential or, as in this case, even privileged. It can have consequences.

A California appeals court held that an e-mail an employee had sent from her employer’s work computer was not a confidential communication subject to the attorney-client privilege. Thus, the privilege which would have normally attached to the e-mail had she sent it from her own computer was deemed to be waived. A key factor in the case was that the employer had warned employees that e-mails sent from work were not confidential and could be monitored.

As noted in the article, not all courts have held this—and not all employers have such broad e-mail policies (although most do)—but it nevertheless again highlights the danger of using a computer at work when sending out confidential or sensitive information. Chances are that your employer has a fairly broad e-mail policy in place (and you might have even signed something which acknowledged it), but when in doubt … just don’t do it.

While the debate over whether Massachusetts should adopt a law restricting the enforceability of non-compete agreements rages on (well, at least among a group of maybe 100 economists, lawyers and business people), California proudly observes that noncompete agreements are unenforceable in that state (except under very limited circumstances).   And, economists argue, that is one reason why the high-tech industry in Silicon Valley is more successful than its counterpart Massachusetts.

Now, come to learn, things were not quite what they seemed.  I’m sure that 99% of California companies are in fact impacted by the California law — that is, they cannot impose covenants not to compete on their employees.  But a few companies — Google, Apple, Pixar, Adobe, Intuit and Intel — figured out an end-run around this law.  Apparently, the Federal Trade Commission tumbled to the fact that each of these companies agreed, with one or more of the others, not to solicit that company’s employees. For example, according to the FTC Apple and Google put each others employees on “Do Not Call” lists.

I will admit that it could have been worse – they could have agreed not to hire each other’s employees under any circumstances, even when employees came to them seeking to change jobs.   From what I read they didn’t go this far.  But still, no-solicit agreements between companies are borderline illegal at best, and when large companies are involved, the border is receding in the rear-view mirror.  And, given job inertia, a “no solicit” probably accomplishes 90% of what a “no hire” would do, anyways.

But the question that comes to my mind is, where were the lawyers overseeing this behavior?  I will concede that no-hire/no-solicit agreements are not illegal per se, but in this case the companies were competitors (at least for talent) and major employers.  It didn’t take Robert Bork to advise companies like Google and Apple this was not a good idea.

Really, Apple and Google.  Really.

Mass Law Blog Lee Gesmer

It may be due to a difficult job market.  Or perhaps it’s just a sign of the times.  According to one article, however, 83% of recruiters now search the internet for “digital dirt” in order to weed out prospective job candidates.  Thus, inappropriate Facebook photos, unbecoming MySpace profiles, vituperative message board postings, controversial political statements, publicly available criminal records, or any other questionable information are helping recruiters eliminate otherwise promising candidates from available positions.   

But it’s not just recruiters who are doing this.  More and more companies—both large and small—are either doing their own in-house searches or subcontracting them out to investigators who do them quickly and inexpensively.  Employers are all too aware that the costliest and most expensive decisions they make have to do with hiring the “right” people.  And the flood of information out there helps them in their decision-making process. 

And it’s perfectly legal.  If you voluntarily provide information and pictures for others to see, you can’t complain if it doesn’t always garner the results you want.  Of course, if a potential employer hacks into a system or uses a password without authorization to compile its profile on you, then you may have legal recourse (assuming that you ever find out about it).  You won’t have the job, but you’ll have the chance to bring an expensive and time-consuming lawsuit. 

So, as I mentioned in my last posting, be careful in general, but especially if you’re unemployed and looking for work (or will be facing that prospect shortly).  If you have any doubts about posting something, this in itself should tell you that perhaps it’s better to resist the urge.  Remember:  When in doubt, keep it out!