How to develop policies on emails if you intend to stay on the safe side of the law: law firm co-founder Howard Kurman dishes his advice
There have been countless business owners, supervisors, and even HR executives who have committed impolitic comments about employees to email messages. Those comments often become evidence in cases where employees sue employers for alleged forms of harassments and/or discrimination or some variant of wrongful discharge. Had such comments never been expressed in those emails the probability of liability against the employer may have been substantially reduced. Many emails have proven to be particularly damaging in plaintiff lawsuits, because the writers have expressed themselves informally without regard to their professional roles within their companies.
Old emails have an ongoing life and can be used in lawsuits years after being written. Management should realize that emails can be stored not only on the sender's computer, but also on the company’s Internet Service Provider's (ISP) server, and on a recipient’s computer. Simply deleting your emails does not mean that those emails have ceased to exist. There can be dozens of copies in the blogosphere, thus making each one easy to recover by plaintiffs. To avoid such emails coming into the wrong hands, a company should have a reasonable policy of purging old emails.
There should be specific rules and protocols established by management to diminish the likelihood for being the target of workplace lawsuits. For example, supervisors must avoid intemperate and inflammatory email comments about employees when communicating with other managerial representatives. There are numerous conversations that can prove costly if one’s choices are impolitic. Supervisors should be guided by the concept that if they don’t want their conversations broadcast on CNN, then those conversations should not be in an email. Furthermore, you never know where your email messages will appear. Will a secretary forward those messages to other employees? Will any of those employees forward the messages to an attorney representing an employee? Will those messages end up as evidence in court? And finally, will those messages determine the size of a settlement? To protect oneself, it is essential that one be guided by a sense of discretion.
For example, if you’re seeking a supervisor’s opinion about an employee’s work performance, ask for it verbally. Make sure that the supervisor understands that no personal judgments are to be included in a written evaluation. Matters of efficiency, responsibility, productivity can be and should all be evaluated. However, the employee’s physique, attractiveness, religion, and sexual orientation should never be part of an evaluation – either verbal or written.
If an employee sues management for any form of harassment, be it sexual, religious, or racial, or for wrongful termination, do not discuss tactics for dealing with such suits via e-mail. Do not question the litigant’s supervisor(s) via email. Do not issue an email asking for embarrassing information about the litigant. Do not exchange derogatory or insulting comments with management about the litigant. Your words could come back not only to haunt you, but also to cost you and your company a great deal of money.
The present administration in Washington, through its appointments to the National Labor Relations Board, has given significant leeway to unions when it comes to organizational efforts in the workplace. When union organizers begin their campaigns, they will look for any improper behavior on the part of management. Therefore, it is essential management act with strict discretion and absolute adherence to the rules and regulations issued by the NLRB. And that includes not discussing tactics and strategies for dealing with organizing efforts in emails. Emails containing intemperate remarks frequently go astray, and you never know who the ultimate recipient will be.
A similar policy applies if your workforce is already unionized and new contract negotiations are just around the corner. You may verbally discuss those negotiations either in person or on the phone with your representatives, but not in emails. Anything that you put in an e-mail could become the subject of a subpoena or be hacked into by your adversaries.
In management’s day-to-day dealings with employees, you should never criticize an employee via e-mail. If an employee collects such emails over a period of time, that employee and an attorney could use the cumulative effect of those messages to indicate that management had a biased opinion of the employee and was attempting to pressure the employee to resign.
While workplace lawsuits and aggressive union organizing campaigns are now commonplace, management can significantly enhance its defenses through carefully maintained protocols, such as those outlined in this article.
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By Howard Kurman, co-founder of the mid-Atlantic law firm of Offit Kurman. The firm has offices in Northern Virginia; Baltimore/Washington; Wilmington, Delaware; and Philadelphia, Pennsylvania. Its website is www.offitkurman.com.
