An ill-worded e-mail, unlike a phone conversation, can come back to haunt you. Deleting e-mail doesn’t mean it’s gone forever, or that a recipient hasn’t saved, printed or forwarded it. Plus, there are plenty of computer experts out there who can recreate or retrieve deleted e-mail messages.
The best policy is to assume that whatever is in an e-mail can be used against you in a court of law.
Recent case: Ann Keim worked for Amtrak for years and had numerous medical problems. She took time off to the point that her boss thought her job essentially had become a part-time one.
When Keim had yet another health crisis, this time an aneurysm, her boss allowed her to take short-term disability leave plus time. However, since she was gone more than 12 weeks, he informed her that she wasn’t eligible for reinstatement to her former position.
Keim sued, alleging that she didn’t get her job back because she had taken . During trial preparation, an e-mail that her boss had sent to another supervisor surfaced. In it, the boss said, “I feel my current vacancy due to medical leave should be filled permanently … the incumbent … has had extended leave of absences for the past 4 or 5 years in a row.” That was enough evidence that Amtrak had considered FMLA-eligible time negatively for the judge to order a trial. (Keim v. National Railroad Passenger Corporation, No. 05-CV-4338, ED PA, 2007)
Final note: There’s another issue to consider about e-mail and its use in judicial proceedings. Just as with paper documents, you can’t hide, alter or destroy electronic files that may bear on a lawsuit. You have a legal requirement to preserve any electronic records as soon as you learn or should realize that there’s a legal claim against the company.
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