A recent survey found that labor and employment-related litigation is a top concern of many companies. In response we have created this Litigation Corner and will from time-to-time provide our readers with practical suggestions for reducing their litigation risks. Today's inaugural feature contains suggestions about e-mails and the danger in believing that e-mails to and from the human resources department somehow are privileged.
E-MAILS TO THE HUMAN RESOURCES DEPARTMENT ARE SUBJECT TO DISCOVERY; THEY ARE NOT PRIVILEGED
The birth of electronic communications, like the birth of a child, has generally been viewed as a glorious event to be celebrated, and, like any newborn, has kept many an employer up late at night worrying about how one or more of its employees' e-mails might grow up to be trouble.
Hastily drafted e-mails have proved to be the undoing of many a company in the context of litigation ranging from anti-trust to employment law. Horror stories of employees saying things in e-mails that they never would say in letters, let alone in face-to-face interactions, regularly grace the front page of newspapers.
Inappropriate e-mail can form the basis for hostile environment harassment claims or may be used as evidence that the company acted with a discriminatory motive when taking an employment action. To reduce this problem, many wise employers prepare and publicize electronic communications policies that inform and warn employees that the employer owns the company's electronic communication system, and that all messages, information and data sent and received by the system are company property and can be monitored. This allows the employer to monitor the system to identify and promptly deal with its misuse by employees. The fear of discovery may reduce abuse of the system by employees, but a good policy goes further and warns employees not to misuse the system in violation of the employer's anti-harassment policy, and describes common sense etiquette tips to help ensure that electronic communications are drafted carefully and treated like any other form of business correspondence, including being reread and edited with a critical eye before the "Send" key is clicked.
Proper record retention protocol also is a must. Various federal and state laws and regulations require employers to retain certain types of "personnel records," including some e-mails, for one, two or more years. Wise employers therefore establish document destruction and retention policies that apply to electronic communications, as well as paper documents. These policies establish time frames for disposal of records, but also should contain an exception, known as a "litigation hold," required by various laws, to ensure that normal disposal time frames are extended for certain documents that may be relevant to pending or potential litigation and to ensure that those documents and related information contained in the electronic communications system are preserved.
Most employers recognize that communications to and from their attorneys for the purpose of obtaining or providing legal advice or concerning pending or threatened litigation are subject to various "privileges" that may allow the employer to avoid turning those communications over to an opposing party in a lawsuit or administrative proceeding. A wise employer has policies in place to help ensure that the privilege is not accidentally lost, for example, by circulating copies of legal advice beyond those who have a need to see it.
While supervisors and managers may well be aware of the attorney-client privilege, many do not realize or, in the heat of the moment simply forget, that no such privilege attaches to communications with the human resources department. All too frequently we discover an e-mail between a supervisor or manager and the human resources department discussing the possibility that an employment action was discriminatory or what steps should be taken to avoid the appearance of discrimination. While the intent of the author may have been totally innocent, the language of the e-mail, when viewed in the harsh light of a hearing or trial, may be taken out of context and may appear to be evidence that discrimination, harassment or retaliation did occur and that advice was sought on how to cover it up.
Because communications among supervisors and the human resources department are not privileged, supervisors must be trained to have important discussions with the human resources department face-to-face or, if that is impractical, on the phone. If e‑mails must be used, they should be used solely to identify facts, and should be written with the understanding that they may be shared with a plaintiff in a lawsuit or be published in a newspaper.
Similarly, after a human resource professional gives advice to a supervisor, either the supervisor or the human resource professional may choose to make a record of the conversation, often through an e-mail or memo "to the file." While creating such a record may be entirely appropriate, the document must, once again, be created with the expectation that it will be disclosed in litigation. Before creating any written record that suggests that discrimination, harassment or retaliation has occurred or may have occurred (including for example, a final report describing the results of an internal investigation), an employer should seek guidance from legal counsel to be sure the facts and findings are reported fairly, accurately and in a manner that does not create unfounded liability.
CONCLUSION
Employers should adopt and follow electronic communications and document destruction and retention policies. In conjunction with those policies, supervisors should be trained on when and how to use the e-mail system. Newly promoted supervisors should receive the training as part of their orientation. That training should include a reminder that communications with the human resources department are not privileged.
With proper "parenting," an employer's electronic communications system can be a source of constant pleasure, not a "problem child."
For more information about this topic, please contact Lonnie Williams, Jr. at 602.229.5300 or your Quarles & Brady attorney.