10 tips for avoiding legal problems in emails

Is your organization training employees how to use email judiciously? Or is digital carelessness setting you up for a lawsuit? We asked attorneys for their advice.

Perhaps it has happened to you: A fellow employee emails a joke that’s meant to be funny, but you find it offensive.

Or maybe you’ve accidentally hit Reply All when you snarked about your chief executive’s latest rally-the-troops bromide.

Email is a powerful tool in business communications, but it comes with risks. An offhand joke could set you up for a lawsuit. The confidential information you carelessly forward could cost you a major client.

“There are few things as devastating as testifying under oath, and having someone read your own words at you in direct contradiction to what you said,” says Peri Berger, an attorney with the New York City offices of Harris Beach.

To spare you that fate, we’ve rounded up advice to ensure that your communicators, executives and employees are briefed on the legal challenges of email (along with social media). Here are some pointers:

1. Write a policy covering email, your intranet and social media.

The policy must explain that the intranet and email are company channels, and that means there’s no expectation of privacy, says Scott Irgang, director of labor relations and employee engagement with the global technology company Pitney Bowes. So email isn’t the channel for things employees would say in confidence, he says.

Define what’s inappropriate information in an email. Recognizing the pervasiveness of mobile devises, Pitney Bowes requires employees to download the appropriate software for security.

The company urges employees to bear in mind the philosophy, “Do the right thing in the right way,” Irgang says.

2. Train your staff—and managers.

Pitney Bowes provides mandatory business conduct training for all employees. They work through digital training modules that include slides, video and quizzes to make sure staffers are reading and engaging in training. The intranet also includes a toolkit for managers.

“We have meetings on the topic,” Irgang says. “We have town halls where this might be discussed. It’s not a one-shot approach. … It’s something that exists in a lot of places that we try to keep top of mind.”

Following a rebranding, the company has also been educating communicators and others on the appropriate tone of voice for the Pitney Bowes brand, adds Carol Wallace, director of global media relations.

3. Remember that your work computer—and its contents—are your employer’s.

Make email training part of a robust social media policy, says Jessica Golden Cortes, an attorney with the New York firm of Davis & Gilbert. People tend to be professional on LinkedIn, but they might let down their guard on Facebook. A manager posting a perceived sexual advance by commenting on a subordinate’s employee’s Facebook post could be handing the staffer ammunition for a lawsuit.

Employers have the right to say your work-issued computers are for business purposes only, Cortes says. Employees should understand that companies may, in a lawsuit, do forensics on work computers. If digital snippets of a Gmail exchange remain on a company device, employers have the right to access that information. (The organization cannot go into the actual Gmail account, even if the user name and password auto-populates.)

“Nobody has or should have an expectation of privacy for anything they say or do using to using the company’s computer system,” says Cortes, who does training for companies on the topic.

Furthermore, if you have work email access from personal device, the organization has a right to establish a policy allowing it to wipe your device when you leave its employ. For that reason, Cortes keeps a different device for personal use.

Email rules also apply to texting or messaging on the Slack app. People are likely to let down their guard when texting, “so there’s more potential for risk,” Cortes says.

4. Include harassment issues in email training.

It goes without saying (or ought to) that sexual harassment is inappropriate, and emails can quickly establish a case. Still, it can cut both ways. In one case Cortes was involved in, a woman filed a sexual harassment lawsuit against her boss.

“We forensically analyzed her computer and found that she had been sending very sexually explicit photos and emails and sexual jokes to various clients as well as various other people using the company’s computer during the workday,” Cortes says.

All this usually is inadmissible in court, but there’s a carve-out for when the employee has been engaging in the same behavior during the workday and using the company’s computer system. Cortes’ firm got the claim dismissed.

5. Remind them that their work isn’t necessarily theirs.

Cortes has been involved in cases in which employees have emailed or posted online their own creative work in job-hunting portfolios. Work they completed as salaried employees, however, is company property—even if the client rejected or never used the work (as in an agency’s ad campaign).

If you created it for your employer, “even though it came out of your head … it is not your property,” Cortes says. “Even if it’s a draft, even if it’s rejected by the client, it’s still not yours.”

6. Be careful with jokes.

“We’ve certainly have situations where people forward things they think are hysterical, whether it be an image or a joke,” Cortes says. “They’re not thinking that other people may interpret it in another way.”

7. Scroll down and check before forwarding.

Don’t carelessly forward emails, several attorney experts say. It can be a problem when there’s a comment further down in an email chain that gets you or somebody else in trouble.

8. No snide remarks.

Hey! Your organization is hip and “with it!” You’re all about hiring millennials. But are you (and your employees) aware of the laws concerning protected classes, such as race, age, gender and nationality?

If somebody on the hiring committee fires off an email that says, “That was a 50-year-old. We don’t want her,” it could end up as evidence in an age-discrimination case, Cortes says. Similarly, you could get in hot water for saying, “So-and-so is acting crazy. I think they’re mental.”

“Internal emails are particularly dangerous,” says Thomas J. Simeone, an attorney with the Washington law firm Simeone & Miller, “because people tend to let their guard down and be less careful about what they say to fellow employees than to customers and other businesses.”

9. Establish email retention policies.

Pitney Bowes email is retained for 90 days. Emails must be archived by the employee or they are auto-deleted after 90 days, says Carol Wallace, director of global media relations.

Consult your lawyers and double-check regulatory requirements, but organizations should automatically purge older emails, Berger says. This opens digital space and saves money. The practice is also wise from a legal perspective, “assuming it is done in a regular fashion and not for the purpose of avoiding disclosure in litigation,” he says.

If it’s the latter, it is “effectively illegal behavior” in every court in the country.

10. Consider making a phone call.

Braden Perry, an attorney with the Kansas City firm Kennyhertz Perry, trains companies to teach their staff the importance of email discretion, he says. His advice: Communicate what you need to communicate, and only that. Leave sarcasm and jokes for the water cooler.

“You should always think that any email you write could be published on page one for all to read,” he says. “Ask yourself: Is it necessary to write? Or can I call and provide the same information?”

This article is in partnership is in PoliteMail.


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