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As Human Resources professionals and small business owners, we have become accustomed over time to training our supervisors and managers on sexual harassment, equal opportunity and affirmative action/diversity topics. We may also train them on important wage and hour laws, time keeping procedures, and a variety of other “nuts and bolts” employment law issues. However, I have become increasingly convinced that some of the most important training we can do for managers and supervisors does not directly relate to one particular employment law or regulation. Instead, it relates to the use of email in today’s business world.
Supervisors often “say” things in an email that they would never write on paper, put in a letter, or type into any other kind of document. As a society, we view emails more like conversations than permanent documents. Now that many of us primarily email from our phones, the illusion of the ephemeral conversation only increases. However, an email is more permanent than a piece of paper. Even after deleted, most emails are retrievable and will be gathered as part of electronic discovery during litigation. The other very unfortunate reality of email conversation is that the same conversation can easily be construed completely differently by two people. So while the supervisor may think he is making a joke, the employee may take the email as offensive or rude.
Managers need to realize that their sarcastic comments, internal jokes, and other, always regretted-in-hindsight remarks, may end up in the hands of a lawyer looking to make the manager and the company look bad in front of a judge or a jury. They may also be called upon to answer for those remarks in a deposition or worse, in a trial.
The same care also needs to be shown for emails that managers send to human resources professionals about employees. Unless counsel is copied on those emails, they will likely be discoverable in a lawsuit. These emails may range from the supervisor taking it upon herself to diagnose the employee’s mental health problems to the supervisor ranting about the employee to the supervisor asking about how he can terminate an employee. Supervisors need to understand that, particularly under the amended Americans with Disabilities Act, their “diagnosis of an employee” very likely gives the employee a claim as having been “regarded as” disabled by her supervisor. As a result, supervisors need to keep any suspicions that an employee is “bipolar,” “depressed” or “unstable” to themselves or at least out of emails. (This does not apply, of course, if the supervisor is genuinely concerned about the safety of the workplace). Human resources professionals also need to be aware of the trap of dashing off a quick response to a supervisor’s emails and creating more discoverable documents for a disgruntled employee.
We all need to learn to treat email like a document we are ready to sign, seal and deliver: Think before responding and take the time to weigh how our responses could be perceived down the road. Further, we should act as we did before email became so popular. When we have a sensitive issue, we should pick up the phone or walk across the building and talk to human resources or the others involved, instead of just shooting off an email that may later be regretted.
I frequently see companies facing additional liability, supervisors facing uncomfortable depositions, or an otherwise very defendable litigation turned upside down all because of comments that were made in emails. We all are guilty of it. However, if supervisors and managers walk away from a training with only the message that emails are NOT conversations, they do NOT disappear, and they are even more damaging than paper because even if deleted they can be recovered, the training time would be well spent.
Each and every time you train your supervisors about any employment law issue, take a few minutes to remind them about the danger of emails. Now pick up the phone and call somebody!