In Part One of this series, we discussed electronically stored information (ESI), the changing technological landscape, new discovery rules encompassing all ESI and what that means for HR in general terms.
In Part Two of this series, we reviewed two recent cases where ESI was used to prosecute claims for FMLA retaliation against an employer.
Part Three – HR Guidance
The Adventure of the Walking HR Professional
So how can HR guard against this type of evidence in the 21st century, when every electronic communication is seemingly stored for eternity? Simple: go the old fashioned route and take a walk.
That’s right, walk down to the office of the individual with whom you wish to speak and have a chat. Sure, this information may also be “discoverable” in the sense that both you and your partner-in-chat could be subpoenaed for a deposition, but the recollection of a conversation is substantially less useful in litigation than an actual time-stamped email, peppered with angry emoticons.
If taking a walk is impractical, pick up the phone. Certain information, including opinions or perceptions regarding employees (un-related to performance), medical conditions, family life, social life, gossip, etc., does not belong in the permanent database in the sky, the server room or your smart phone.
Use your best judgment when sending a comment about a co-worker out over the internal or external web. Imagine there’s a salivating plaintiff’s attorney peering over your shoulder, reading what you write. Imagine an entire courtroom full of people, including a scornful jury and terrifying judge, listening as your email is being read aloud. If the message isn’t appropriate for their ears, then it’s probably not appropriate for email or text message, either.
The Adventure of the Dusty File Cabinet
Likewise, personnel files are for factual information only: attendance records, fact-based performance evaluations, licensing information, credentials, education background and written complaints from or about the employee. No matter what form they are in, these records are protected by employee privacy concerns, so tread lightly.
Impressions and opinions regarding personnel issues do not belong here, nor do they belong in any electronically retrievable location. Avoid committing it to a location from which it can be discovered. Keep that information in the safest place of all: your brain.
Despite the move to electronic record keeping, many companies continue to maintain so-called “hard copy” personnel files. You know the ones I mean, the dusty folders in the file cabinet in the manager’s office. Yeah, those.
Ultimately, the employer may want to convert these records to ESI, given the ease of use in terms of committing new information to personnel files and the ease of retrieving stored information. If not, the same restrictions would apply to hard copy materials.
The Adventure of the Meek Interpreter
Email is an absolutely terrible way to criticize an employee for myriad reasons. Not only can words without an accompanying facial expression be misconstrued, but so can fonts.
Some people may use capital letters to emphasize a point and others MAY USE IT TO YELL AT YOU.
Thus, an email saying “this is NOT how we do things at our company” can be interpreted in many different ways. And of course, it can be discoverable and used by a plaintiff’s attorney to demonstrate how positively mean you are.
Don’t even get me started on exclamation points!
This type of communication – constructive criticism – is best left for face-to-face conversations where HR has the ability to communicate sincerity and compassion at the same time.
A Study in Spoliation
Finally, given developing e-discovery rules, HR must always be mindful of spoliation concerns. Spoliation is a legal term for the negligent misplacement, withholding or destruction of evidence that is relevant to a lawsuit. Where spoliation was intentional, it may be treated as criminal and could result in fines and even incarceration. Where spoliation was merely negligent (careless), it could nevertheless result in civil penalties, fines or worse: outright negative outcomes in litigation.
Insofar as negative outcomes are concerned, many jurisdictions treat spoliation as a negative inference against the party who misplaced or destroyed the evidence in question. Thus, if one party can demonstrate that an email existed containing a supervisor’s opinion of an employee’s performance, but the employer cannot produce it, the court may instruct the jury to assume that the email said what the employee claims it said.
And plaintiffs’ attorneys can get very creative when it comes to painting the employer in a bad light during an employment dispute.
“Beyond the obvious facts that he has at some time done manual labor, that he takes snuff, that he is a Freemason, that he has been in China, and that he has done a considerable amount of writing lately, I can deduce nothing else,” [Sherlock said.] – Sir Arthur Conan Doyle, The Adventure of the Red-Headed League (1892).
So remember, technology can be a friend or foe. It can make your work life substantially easier, more efficient and more productive. But it can also come back to haunt you at a later date, preferring to tussle with you at the precipice of Reichenbach Falls – or, its legal equivalent: a courtroom.