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E is for Evidence: The HR Risks of Smoking-Gun Employee Emails

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in Employment Law,Human Resources

Do employees in your organization know how to send email?

Of course they know how to physically send a message. But have you ever taught them what should—and, more importantly, should not—be included in email?

"The 'e' in email stands for eternal evidence and it doesn’t go away," said attorney Mindy Chapman, author of the HR Specialist’s Case in Point blog, at this week’s Society for Human Resource Management (SHRM) conference in Las Vegas.

Chapman gave examples of real-life email blunders that cost employers big in court, including managers who included these beauties in their email:

  • "We would like to accommodate you, but we’re not set up for blind people." (an $8 million verdict)
  • "I don’t care about the FMLA, shmeflma!"
  • "I’m sick of always having to accommodate her."

Chapman said corporate emails are "a treasure trove of evidence" in employment law court cases. More than 107 trillion emails were sent in 2010 and business people spend about 25% of their workdays on email.

Employers are required to place a “litigation hold” on destroying any email once they become aware that a legal claim may be coming.

When Chapman asked the packed room how many train employees on the proper use of email, very few raised their hands. Yet more than half said they’ve disciplined employees for improper use of email.

"Employees should have no expectation of privacy with email—none. And you should make that clear," said Chapman. She cited these common myths held by employees:

Myth #1: It’s my e-mail, with my name on it, so you can’t search it. Employer response: Our e-mail policy puts you on notice of our rights to search and defeats your reasonable expectation of privacy.

Myth #2: It’s my own personal password and personal folders, not the company’s. Employer response: But, they were transmitted over OUR network!

Myth #3: I own my own computer and bring it to work. Employer response: The computer was being used for work-related purposes and therefore you have no reasonable expectation of privacy.

Chapman says employees need to realize that "they’re always creating legal documents" with the creation of each new email. She said HR should teach employees to approach email based on these three guiding principles:

1. Start all emails by asking yourself, "Does this need to be in writing?" If not, pick up the phone or walk down the hall.

2. If you can't say it, don't email it.

3. Write every email like it's going to be read to a jury … because it just may be.

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