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Warn managers: That snarky email may be the smoking-gun evidence that loses a lawsuit

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in Discrimination and Harassment,Firing,Human Resources

It used to be that managers picked up the phone when seeking HR’s input on how to handle an employee problem. These days, they send an email. That can spell big trouble.

Email, unlike a phone conversation, leaves a perfect record of what transpired. And courts don’t hesitate to use email as evidence.

If the tone of an email seems questionable, discuss it—in person—with the sender. Supervisors may not realize that their written words may come back to haunt them.

Recent case: Brenda Myers worked in the office at Wickes Furniture. When a shipment arrived, she volunteered to help move the merchandise onto the showroom floor. That’s when she strained her back.

The next day, Myers went to an urgent care clinic for treatment. Shortly after, her doctor placed a lifting restriction on her and ordered physical therapy. At one point, Myers underwent an independent medical exam and was cleared to return to work with no restrictions. Her own doctors disagreed and continued the restrictions.

Eventually, Myers ended up in the hospital with back pain. When she returned, her supervisors refused to honor her restrictions and insisted she get a doctor’s note for any ab­­sence, even though company policy only required a note for absences of three days or longer.

The disagreement continued as Myers’ missed more work and used FMLA leave to cover the absences.

Around the same time, Myers’ supervisors began sending emails to HR and one another, commenting on the situation. In one, a supervisor said, “She went from 6 hours a day to apparently zero and in the hospital.”

Another noted that Myers stated, “that she was told NOT to work due to her back injury. Sigh.” Another asked, “Amazing … how is she being paid for last week’s missed days?”

Myers then began receiving negative performance appraisals, noting a bad attitude toward co-workers. She was terminated for poor performance.

Myers sued, alleging disability discrimination along with retaliation for taking FMLA leave and for filing a workers’ comp claim. Wickes Furniture argued it did nothing wrong, merely terminating a poor performer.

Myers countered with the emails and the fact that she had actually received an award for great performance after co-workers nominated her.

The court said the award and the caustic emails could be used to prove that Myers was being targeted for termination in retaliation for claiming a disability and because she took FMLA leave. (Myers v. Wickes Furniture, No. 06-CV-04951, ND IL, 2012)

Final note: It’s a good idea to train all employees how to communicate professionally, but it’s critical for supervisors and managers. Remind them that anything they say in an email, text message or other written communication may end up as evidence in a lawsuit.

Encourage them to pick up the phone to discuss routine questions and guidance.

If you do receive emails like the ones in this case, take immediate action. If it’s clear the supervisor resents the employee for taking leave, explain why that’s inappropriate. Involve higher-level management if necessary.

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