‘Innocent’ little e-mails and text messages can cost companies billions, wreck promising careers (of politicians and HR managers), and cause untold hassles.
Mindy Chapman, a consultant and president of Mindy Chapman & Associates 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 CED, the “10 Sins of E-Mail,” plus an introduction to a webinar you won’t want to miss if you’re new to the world of California HR.
Download your free copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!
In response to today’s CED post, a reader responded with a great point. Here are his comments:
I am concerned that the focus of the topic is the “fixing of the emails so as to not provide evidentiary material.” I hope the speaker will address the underlying attitudes of the employee, supervisor / company that allows the points of view that generate that type of email. Fixing the email is like painting over a termite infested post. Emails, like the examples for the presentation, are to me red flags of the employee’s/company’s attitude or lack of effective training. Don’t fix the emails, fix the mind set of the person/corporation with the POV that sends the email. The fact that the emails have the information they have is very good – we know that many corporations have covert operations below the public image – otherwise PR firms would be out of business and TV commercials would be less necessary to convince us otherwise.
Awesome topic!
In response to today’s CED post, a reader responded with a great point. Here are his comments:
I am concerned that the focus of the topic is the “fixing of the emails so as to not provide evidentiary material.” I hope the speaker will address the underlying attitudes of the employee, supervisor / company that allows the points of view that generate that type of email. Fixing the email is like painting over a termite infested post. Emails, like the examples for the presentation, are to me red flags of the employee’s/company’s attitude or lack of effective training. Don’t fix the emails, fix the mind set of the person/corporation with the POV that sends the email. The fact that the emails have the information they have is very good – we know that many corporations have covert operations below the public image – otherwise PR firms would be out of business and TV commercials would be less necessary to convince us otherwise.
Awesome topic!