The E-Mail that Got me Fired . . . Or Sued
Employees: Did you know . . . Your employer probably has the right to search your e-mails in computer storage, according to a recent decision out of the Third Circuit Court of Appeals. The Electronic Communications Privacy Act bans message “interception” only where it occurs at the time of transmission. Be careful of the e-mails that you get and keep at work. Save making any jokes about the boss or about recalcitrant employees until after work, and always do job-hunting from home or another safe source. Even so-called “deleted” e-mails at the office can still be unearthed by a crafty employer or former employee. Especially dangerous are communications of a sexual or harassing nature. Also be aware that if you are personally accused of unlawful harassment in Ohio, not only an employer can be sued, but you also can be sued as an individual. That goes for other types of discriminatory behavior on the job, such as retaliation if you are in a supervisory position, etc.
Employers: Beware . . . As noted above, e-mails on your system are not safe from discovery in litigation. Moreover, courts have begun sanctioning employers for “spoliation of evidence” when e-mails pertinent to cases are removed or deleted. For this reason, employers should always ensure that if an action is threatened or filed you preserve everything, including cyber-material. Plaintiffs are generally permitted to hire an IT expert to comb through your computer innards and find e-mails that you thought long-ago deleted. They can be deadly in employment actions. It therefore is an excellent idea to train your workforce, particularly managers and supervisors, in the art of sending, patrolling, and maintaining proper and work-related e-mails. Some lawyers and firms offer seminars or general advice on the handling of inter- or intra-office e-mails and e-mail systems, or there are several excellent articles on the subject. Having a computer-expert examine your system periodically also may not be a bad idea if you have no IT employee on hand.
