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“The ‘e’ in email stands for evidence,” particularly if the email is sarcastic, cautions Joe Beachboard, an attorney with Ogletree Deakins in Torrance, Calif.
Management attorneys interviewed by SHRM Online cited a host of sarcastic emails that could cause headaches for employers, including:
• In response to an email about an employee being on leave, a manager emails a co-worker that the employee was probably “recovering from another bender.” There are a variety of potential ramifications from this email, including potentially perceiving someone as having an Americans with Disabilities Act disability, as well as defamation, Beachboard warned.
• In response to an email about a worker being separated, a manager emails a co-worker that the company is “better off without that thieving SOB.” While the employee was terminated for violating company policy on removal of company property, “theft” has criminal implications and could lead to allegations of defamation, Beachboard added.
• An email between male managers mentions that one of them was going to have drinks with a particular employee. In response, the other manager says he “wouldn’t have a drink with him on a bet as he wasn’t sure which way he swings.”
• A manager emails, “I am going to have a stress disorder from trying to accommodate everyone. I need an accommodation.”
• A manager emails, “I am tired of employees who don’t want to work hard claiming they can’t.”
• Another manager emails, “This employee needs an accommodation about as much as I need a migraine.”
• A manager questions HR about an employee’s need for leave, saying, “Come on. Hasn’t she been out enough? She’s faking it. This is ridiculous.”
• When an employee is given a Friday afternoon off for religious reasons, a manager fires off an email saying, “This is a bunch of baloney. I wonder where she’s going.”
• A senior-level manager emails an employee about which vendors he would or would not sleep with, giving the name, rating and characteristics.
“Some managers think email is just talking with your fingers. Employment lawyers know better,” remarked Jathan Janove, an attorney with Ogletree Deakins in Portland, Ore. A sarcastic email often winds up being exhibit one and might result in larger damages, he cautioned.
Often, employees send emails they thought were funny but the humor doesn’t translate. All that is left is the printed word, which doesn’t go away, he added.
Employers “have to educate your managers,” Steve Miller, an attorney with Fisher & Phillips in Chicago, emphasized.
Email is so informal that many employees often treat it like regular conversation. Employees should be reminded to communicate in a professional manner, including in their emails, he added.
Employees should type their emails, read them and make sure they are professional before sending them, Miller remarked. “No sarcasm, no profanity.”
“I think the most effective way to train managers is to blow up mock emails and ask managers to see how they think they would look to a jury,” added Jonathan Segal, an attorney with Duane Morris in Philadelphia. “Make them see it through a jury’s window.”
Allen Smith, J.D., is manager, workplace law content.
© 2012 SHRM. All rights reserved.
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