A ‘general’ reminder about e-mail

November 16, 2012 - by: admin 2 COMMENTS

by Boyd Byers

“Don’t put anything in writing that you wouldn’t want to see published on the front page of the newspaper,” the old saying goes. Apparently our top military leaders didn’t get the memo.

Unless you’ve been hiding in a cave in Afghanistan, you probably know the story. Retired General David Petraeus quit as CIA director when an investigation turned up e-mails exposing his affair with his biographer, Paula Broadwell. Now Marine General John Allen, the top American military commander in Afghanistan, is under scrutiny for a voluminous e-mail exchange with Jill Kelley, a Florida socialite and “volunteer social liaison” to an Air Force base in Tampa. (When I say “voluminous,” I mean 20,000 to 30,000 pages.) The e-mails “go beyond flirtatious and can probably be described safely as suggestive,” according to an anonymous Defense Department official.

The discovery of these e-mails was triggered by a prior set of e-mails. Last summer, Kelley received several e-mails from an anonymous sender that she perceived as harassing or threatening. So she went to a friend at the FBI and asked him to look into it. While the facts remain murky, the FBI’s investigation apparently revealed that Broadwell had sent anonymous e-mails to Allen warning him about Kelley, and Allen then forwarded them to Kelley. And in the course of investigating Broadwell’s and Kelley’s e-mail accounts, the FBI stumbled upon the Petraeus-Broadwell and Allen-Kelley e-mail exchanges. What a tangled web!

Why, you ask, am I rehashing this soap opera in an employment law article? It’s simple: This story reaffirms that even smart people can be incredibly stupid when it comes to e-mail.

Which takes us back to the proverb at the start of this article. If the CIA director and a four-star general—who should be keenly aware that e-mail lasts forever and can be harvested by forensic experts—aren’t smart or disciplined enough to refrain from saying things in e-mail that they don’t like seeing in the newspaper, how can you expect your organization’s employees to exercise such restraint?

Now don’t get me wrong here. I’m not saying you should coach your employees on how to cover up their wrongdoing. Rather, my point is that it’s important for your employees to understand that e-mail can be dangerous and that some communications are better had in person than via e-mail.

As we all know, it’s difficult to convey nuance in e-mail. It lends itself to misstatements and misinterpretations. And e-mail doesn’t permit the natural ask-and-explain that occurs during an in-person or telephone conversation. Further, e-mail is permanent (or at least permanent enough).

Putting all this together, the bottom line is that certain business discussions, such as those involving employee discipline and discharge decisions, simply shouldn’t take place in e-mail. At least not if a lawyer isn’t substantively involved in the conversation. You should assume that if your organization is sued by a former employee, you’ll have to cough up any non-attorney-client privileged e-mails involving the employment action at issue or the events leading up to that action. And heaven help you if there’s anything in those e-mails that can be construed or twisted to suggest that the reasoning for firing the employee is inconsistent, incorrect, or impure.

Here are a few reminders about e-mail policies, practices, and training:

  • Train employees about good e-mail practices. Tell them which topics and types of conversations are appropriate for e-mail and which are not. Encourage them to think about picking up the phone or walking down the hall rather than reflexively sending or responding to e-mail. Teach them general e-mail etiquette. Remind them that e-mail is not easily deleted and can be readily copied and forwarded.
  • Say in writing that the company’s e-mail system, computers, smart phones, and other electronic devices are the property of the company and subject to monitoring and inspection—so they should not have any expectation of privacy.
  • Remind employees how easy it is for confidential information to get out by improper or inattentive e-mail use or by being careless with passwords and portable electronic devices.
  • Affirm that inappropriate use of e-mail or electronic communication devices will result in discipline or discharge.

A comprehensive electronic communication policy should cover a lot more than that, of course, but you get the idea. Most organizations do in fact have appropriate policies. But many drop the ball by not talking about this enough in training and by not providing written reminders.

During your next employee training session, think about including a short session on the danger of e-mail, using examples from the news. (There’s no shortage of examples, and they aren’t hard to find.) This can be a powerful teaching tool. Start and end by telling them, “Don’t put anything in writing that you wouldn’t want to see published on the front page of the newspaper.”

Boyd Byers is a partner with Foulston Siefkin LLP, an Employers Counsel Network member, and the editor of Kansas Employment Law Letter. You can contact him at bbyers@foulston.com or 316-291-9716

2 COMMENTS

1 Jatinder Vijh
10:02:46, 21/11/12

For any business enterprise emailing is to be taken seriously and not a casual medium of communication. The artcle hammers this point very effectively.

2 Doug Hertel
10:14:00, 21/11/12

The underlying theme of the article is that awareness of policy leads to compliance with policy. The starting assumption Attorney Byers offers is that General Petraeus is one of our top leaders who “didn’t get the memo.” Frankly, I would suggest this is an incorrect assumption and contradicted by mountains of evidence (like what we see in the business news headlines all the time). Do we really believe that issuing clearly-written policies and reiterating them in frequent training sessions will change employee behavior? I believe General Petraeus is a highly intelligent person who knew his employer’s expectation for email use and, perhaps more importantlly, understood the rationale behind that expectation. Further, I believe he knew the sensitivity of his position required that his personal life would be scrutinized in an ongoing manner, and his email was certainly subject to review.

I am NOT suggesting that issues clear policies and expectations is a waste of time. It is important for employers to do what Attorney Byers outlines. But let’s be honest with ourselves — do we really do so because we think it will change employee decision-making on the job? If a person of General Petraeus’ considerable intelligence does not conform to organizational policy, I am pessimistic that those policies will actually change the behavior of employees who are pre-disposed to do what they want on the job. My sense is that human beings will do what they believe they can “get away with.” Putting up additional speed limit signs on our highways will not change driving habits.

I would suggest that the primary value of employers taking the measures outlined by Atty. Byers is that it allows us to take definitive action when inappropriate use surfaces. The actions outlined in the article are very important and it’s valuable to implement them — however, they are more for “CYA” purposes and a guideline for taking corrective action rather than a “behavior-changing” measure.

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