The Dangers Lurking in E-mails -Risk Management

The Dangers Lurking in E mails  Risk ManagementWhile you may think you can write more openly with your managers and supervisors in e-mails, recent legal precedent would beg to differ.

Anything you or a member of your managerial staff write in an email that may seem like private communication, could in fact become evidence in a lawsuit. And once it is admitted as evidence and your inboxes become fodder for a zealous plaintiff attorney, the contents
of all your e-mails may be scoured for any hints of wrong doing and discrimination.

An opinion written in November 2011 by the US District Court for the Eastern District of North Carolina reflects just how dangerous any flippant missives can be for your company’s defense.

In the case of Norman vs. Beasley Mezzanine Holdings, Kimberly Norman worked for a radio station as an advertising account executive. She consistently met her targets and received good reviews from her superiors. But she also suffered from a gastric disorder which worsened over time and she started asking for occasional leave under the Family Medical Leave Act. The company never refused her requests.

Later, she was fired for insubordination. She sued, accusing the firm of violating the FMLA and claiming her firing was discriminatory and retaliatory. The employer’s motion for summary judgement eventually made its way to the US District Court, which denied the motion. In its denial, the court wrote that Norman had submitted enough evidence to support her claim that she was unfairly discriminated and retaliated against. In particular, the court cited an e-mail, in which Norman was described as “a weak link,” indicating what a supervisor thought about her claims of illness.

The US District Court ordered a jury trial. In another example, Shaffer vs. American Medical Association, William Shaffer was the director of leadership communications for the American Medical Association. In 2008, the AMA took steps to reduce its budget and staff. When the AMA’s chief marketing officer in October asked Shaffer’s boss whether Shaffer should be slated for layoff, he did not believe cutting additional positions was necessary,including Shaffer’s position. The boss suddenly changed his mind after Nov. 20, when Shaffer asked for four to six weeks of FMLA leave for knee replacement surgery.

Ten days later, Shaffer’s supervisor wrote an e-mail to the chief marketing officer, stating that Shaffer’s position should be eliminated. Then he wrote: “The team is already preparing for Bill’s short-term leave in January, so his departure should not have any immediate negative impact.”

Shaffer filed suit shortly after his termination. After a lower court granted the AMA summary judgment, the motion was overturned by the Seventh Circuit Court of Appeals, which wrote in its opinion that the supervisor’s “11th hour” decision to terminate Shaffer, as well as the inconsistent decision-making as documented (e.g., shredded handwritten notes, notes that were dated months before they were written), could have created a “paper trail” that acted as a cover-up to unlawful conduct.

The court decided a jury should hear Shaffer’s FMLA retaliation claim.

The lesson: When it comes to e-mail, limit communication to just the facts. For example, had the e-mails in the two examples above simply listed sales goals missed or that all positions were eligible for the downsizing, they would not have seemed so inflammatory.

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