Re-Re-Revisiting the Dangers of Electronic Communications

You already know this – people use electronic communications in ways that are not always in their best interests. People say what they really think in electronic communications more than they do face-to-face, or in a more deliberately prepared old-fashioned, written document. Both in terms of effective human interaction, and in terms of protecting one’s legal interests, it is often not a good idea to memorialize everything you really think. If everybody who had been told this had acted on it, I would not be writing this column. But that is not the case.

Bill Nolan

Electronic communications have been around long enough that folks have been told enough times to be careful with them, but they engage in self-destructive behavior anyway; behavior that we can now declare to be deep-seated human behavior that we may never entirely fix. Just as it appears that during my legal career, there will always be a need to remind some managerial employees that it is a bad idea to make comments of a sexual nature to subordinate employees, it appears there will always be a need to remind people to please, please, please try to have some filters when communicating electronically regarding business matters.

While outside my official expertise to say so, electronic communications are normally just a bad way of solving problems. Read the thoughts of one businessman who claims to have banned internal email at his company for a week. I do not necessarily agree with some of the more extreme statements about email not being a communication tool when used properly, but certainly agree it is used in circumstances where it is neither efficient nor effective. But one thought – wouldn’t it be a net gain if we just got rid of the “Reply All” button?

My main point here is a plea that you again consider the legal implications of misplaced electronic communications. In short, electronic communications are evidence. As noted above, evidence of what you are really thinking – thoughts that might be illegal if you acted on them. There are a lot of articles by lawyers and a lot of decisions from courts on the finer points of obtaining electronic communications of various kinds during the discovery process in litigation, but for purposes of this article, you should assume that your adversaries can and will obtain copies of your emails, texts, posts and the like. Also be reminded that people who are not your adversaries today may be later. That’s another article, but the basis of much of what keeps litigators busy.

The best and most recurrent example in the area of human resources and employment law is the manager who is frustrated by an employee’s absences. We can understand why a manager would be frustrated by an employee’s absences. Managers are responsible for their team producing goods and/or services, and it is harder to accomplish that if your team members are not at work. This is particularly true when those absences were not planned.

We can also understand why a manager sends an email at about 8:15 a.m to HR, to the manager’s boss and to the absent employee to read tomorrow. When the manager receives the news of the employee’s absence, the manager is suddenly in reorganizing mode to account for this unexpected absence. There is no time to walk down the hall or even pick up the phone. We need to rescue this day. And, the manager is mad, and just needs to say something before turning to the tasks at hand.

There is just one problem with sending that email capturing all of those things – the employee who is unexpectedly absent may be sick. And sick employees may have legal rights. For employers of a certain size, most employees have rights to be absent for certain health conditions under the federal Family and Medical Leave Act. But even for the smallest employers, employees may have rights under disability discrimination laws. And if someday you have a dispute under one of those laws, by sending that frustrated email the manager has just created an exhibit for the plaintiff’s lawyer to show the jury what may seem like hostility towards the plaintiff simply exercising his legal rights.

Don’t get me wrong – the employer does not need to simply tolerate unlimited employee absences. That is not the point here. The point is that again and again we see and read about situations where the employer’s legal position would have been better if the manager had not created evidence of frustration in an email or other electronic communication.

You can apply this same scenario to any number of situations. The question to internalize for each communication is, am I willing to live with this communication as my official legal position two – or more – years from now when it shows up in a lawsuit? If it involves anger, frustration, uncertainty or tension, if your lawyer could step in – think of the little cartoon conscience over your shoulder – she would tell you to pick up the phone, walk down the hall or just wait. There are enough legal challenges for businesses without adding to them by giving your opponent a smoking gun.