‘Innocent’ little e-mails and text messages can cost companies billions, wreck promising careers (of politicians and HR managers), and cause untold hassles. In today’s Advisor, attorney Mindy Chapman sorts out the issues.
Chapman, a popular speaker and consultant and president of Mindy Chapman & Assocates LLC, offered her tips at the recent SHRM Annual Convention and Exhibition in Las Vegas.
Smoking Gun E-mails
One of Chapman’s favorite e-mail debacles concerns emails that caused Merck to lose $6.9 billion of the company’s valuation. Merck shares fell as much as 10.5 percent after the Wall Street Journal published e-mails from company officials that suggested Merck knew about the heart-attack risks of the arthritis drug years before the recall.
An e-mail dated March 9, 2000 suggested Merck recognized Vioxx increased heart risk. The e-mail—written by research chief Edward Scolnick—said cardiovascular events “are clearly there.” Another e-mail, written years ago by Merck research executive Alice Reicin, suggested people at high risk be excluded from a trial so the rate of cardiovascular problems of Vioxx patients and others "would not be evident.”
E-mails are a treasure trove of evidence, Chapman says. For example:
- Microsoft’s anti-trust case was built on e-mails
- Arthur Andersen’s e-mails revealed marching orders to shred Enron documents
- Merrill Lynch analysts’ e-mails described as “dogs” stocks that were being touted as “buys.”
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Why You Must Care About E-Mail
Technology has brought with it easily discoverable and quickly provable lawsuits, Chapman says. You’re going to find:
- Hiring & promotion biases (“We’ve hired a lot of that kind before …”)
- Harassment & discrimination cases (“After dinner, would you like to …”)
- FMLA/ADA infringements (“How many more accommodations do we have to give Mindy?”)
- Reputational harm. (“This company doesn’t follow accepted accounting standards.”) Most companies are now putting a lot of money into marketing their brands, but it only takes one bad email to damage the brand severely.
- And a host of other challenges including ethics policy violations, trade secret & copyright violations, breaches of contract claims, and confidentiality violations.
Remember, says Chapman, that e-mail is never deleted, and it resides in an easily searchable database. The E in E-mail stands for Eternal Evidence, Chapman says.
The Element of Ownership
Who owns e-mail? It’s simple, asks Chapman. Many think the employee/sender owns the email (and the liability), but:
- Your company pays for all the computers
- Your company pays for the network/server/technical support
- Your company pays employees to work at their company owned computers
And that means that bottom line, your company is … legally liable for all email, Chapman says.
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Employees’ E-Mail Myths
Chapman details the four big myths that employees hold about e-mail:
Employees’ E-Mail Myth #1
Employee: “It’s my e-mail, with my name on it, so you can’t search it.”
Employer: “Our e-mail policy puts you on notice of our rights to search and defeats your reasonable expectation of privacy.”
Employees’ E-Mail Myth #2
Employee: “It’s my own personal password and personal folders, not the company’s.”
Employer: “But, they were transmitted over OUR network!”
Employees’ E-Mail Myth #3
Employee: “I own my own computer and bring it to work.”
Employer: “The computer was being used for work-related purposes and therefore you have ‘no reasonable expectation of privacy.'”
Employees’ E-Mail Myth #4
Employee: “You can never search my private e-mail account. Period. It’s mine!”
Employer: “Oh, yes, we might!”
Sometimes (Rarely) E-Mail Helps!
A teacher sued her employer for wrongful denial of tenure, Chapman relates. The employer was able to produce sexual messages between her and a student. So sometimes, texts and e-mail can be used to help you, Chapman says.
In tomorrow’s Advisor, Chapman’s 10 Sins of E-Mail, plus an introduction to a handy collection of pre-written HR policies on CD.