Howard Levitt: Disparaging emails increasingly provide fodder for employers looking to terminate
By Howard Levitt
Even the best legal argument is only as strong as its weakest link. An employee suing for wrongful dismissal may have a stellar employment record. That is, until the employer discovers her penchant for circulating disparaging emails about her employer.
As I frequently tell my employer clients: It takes only one good ground to terminate an employee for cause; you just need to secure it.
In 2017, that ground is often found in an email. Often some innocuous, apparently innocent correspondence sent to a colleague can lead to an employee’s undoing.
Although workplace emails are hardly new, many employees still approach their work email accounts as their personal soap box, sending email to colleagues disparaging that employee everybody despises; email disparaging management or their employer; email with inappropriate comments and images; emails containing confidential information; and vast quantities of personal email sent during business hours.
There is one common denominator in all of this — it’s all fodder for an employer building a case for termination.
Employees should be cognizant of what they put in writing, because here is the simple truth: Your work email account does not belong to you. It belongs to your employer, along with the emails you send and receive from it.
As a simple rule, if you wouldn’t feel comfortable with your employer reading your work emails, you shouldn’t be sending them. If you’re the recipient of inappropriate emails, you’re best protection is to write that individual and tell them to stop sending them to you.
It is not merely terminated employees who can expect their employer to review the emails they have sent. Employer software flagging inappropriate words or employers just checking what certain targeted employees are up to.
And don’t presume that a single act of indiscretion will go unnoticed. Not anymore.
There is an entire industry of document retrieval known as e-discovery, dedicated to scouring millions of documents, searching for that one smoking gun. If there’s something to be found, your employer will likely find it. In fact, e-discovery has become such an integral part of the litigation process that I now have a lawyer at my firm who works in it full-time.
That doesn’t mean that management and executives enjoy impunity. On the contrary, management is often the face of the business and obliged to set the “tone from the top.”
They are held to an even higher standard than their subordinates. Moreover, if management is circulating inappropriate emails, it will be difficult to discipline a subordinate for doing the same.
So what’s the solution? It is often difficult to terminate an employee for circulating inappropriate emails without defining what “inappropriate” means. The best defence for employers is a code of conduct. Ensure the code succinctly and unambiguously states what employees can and cannot write, what they can and cannot circulate, and that violating the code is cause for dismissal.
Email’s immediacy makes it an effective workplace tool. It also makes it dangerous. The next time you’re looking to engage in some witty email flirtation, or even repartee, take a moment and ask yourself, before you hit the send button: What would my employer think? The answer just might save your job.