“The ‘e’ in e-mail stands for evidence,” particularly if the e-mail is sarcastic, cautioned Joe Beachboard, an attorney with Ogletree Deakins in Torrance, Calif.
Management attorneys interviewed by SHRM Online cited a host of sarcastic e-mails that could cause headaches for employers, including:
In response to an e-mail about an employee being on leave, a manager e-mails a co-worker that the employee was probably “recovering from another bender.” There are a variety of potential ramifications from this e-mail, including potentially perceiving someone as having an Americans with Disabilities Act disability, as well as defamation, Beachboard warned.
In response to an e-mail about a worker being separated, a manager e-mails 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 e-mail 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 e-mails, “I am going to have a stress disorder from trying to accommodate everyone. I need an accommodation.”
A manager e-mails, “I am tired of employees who don’t want to work hard claiming they can’t.”
Another manager e-mails, “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 e-mail saying, “This is a bunch of baloney. I wonder where she’s going.”
A senior-level manager e-mails an employee about which vendors he would or would not sleep with, giving the name, rating, characteristics and prominent body parts.
“Some managers think e-mail is just talking with your fingers. Employment lawyers know better,” remarked Jathan Janove, an attorney with Ogletree Deakins in Portland, Ore. A sarcastic e-mail often winds up being exhibit one and might result in larger damages, he cautioned.
Often, employees send e-mails 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.
E-mail 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 e-mails, he added.
Employees should type their e-mails, 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 e-mails 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.