Beyond Sexual Harassment Training: the "Smoking Gun" E-Mail and Critical Privacy Education

Any employer hit with a sexual harassment claim quickly learns how difficult – and expensive -- it can be to gather, review and eventually produce the kinds of documents plaintiffs’ counsel demand. A recent change to the Federal Rules of Civil Procedure just made that job harder. 

The Rules of Civil Procedure govern how litigation is handled – including how and when plaintiffs can look at your internal documents and communications.  Under the new rules (effective December 1, 2006), parties must meet and exchange all documents and information potentially relevant to the dispute, even before a discovery request is made. This must occur 90 days after the appearance of a defendant, or 120 days after the complaint has been served on a defendant.  The required information includes all documents “electronically stored” that a party “may use to support its claims or defenses.”  Among other things, that means e-mail.

These new requirements may sound innocuous -- but think about the practical impact on your organization and your office workflow: 

• Plaintiffs do not even need to demand electronically stored documents like e-mails.  You are obligated to do the work necessary to find the documents and then tell the plaintiff all about them.

• The timeframe is incredibly short.  Imagine having as little as 90 days to cull through every e-mail that has been sent or received over the last two or three years!  The time and expense alone can create great pressure to settle even unmeritorious claims. 

• Plaintiffs’ counsel has a field day.  Employees commonly make embarrassing statements in e-mail and often use a single e-mail to discuss multiple topics.  All this means that plaintiffs’ counsel gets a wide window into your organization and an unmatched chance to look for a way to expand claims against you.

Not surprisingly, a cottage industry has sprung up to help companies respond to these kinds of discovery obligations.  But before you find yourself the subject of a lawsuit, there is something you can do to mitigate your losses – train employees about appropriate use of electronic resources in the workplace, most importantly, e-mail and the Internet.

It always amazes me how employees get extensive computer access within hours of showing up for their first day of work, but are rarely trained on company policies and rules.  In today’s legal environment, a loose e-mail can cost your organization more than you care to imagine.  Yet, most organizations make no efforts to educate employees and managers on the rules of the “virtual road.” 

As a practical matter, training on e-mail and Internet use can also be an important part of your effort to manage harassment and discrimination risks.  Some of the most common e-mail gaffes end up as exhibits in lawsuits because they involve inappropriate jokes, personal references and “short hand” that can be seen as racially or sexually insensitive.  Studies consistently show that jurors are more likely to believe that these kinds of written comments reflect the “real story” – and believe that explanations offered at trial are self-serving.  

And turning to another hot topic these days, training on the use of electronic resources covers two additional critical issues:  confidentiality and workplace privacy.  Hewlett-Packard recently learned the importance of privacy training – and on a national stage.  The company just settled a criminal complaint alleging that HP used “false and fraudulent” pretenses and violated California’s identity theft statute. 

The final cost?   A $14.5 million cash settlement, the resignation of key board members, and nearly irreparable harm to the company’s reputation as corporate leader.  Even cursory training might have made the difference between complying with appropriate legal standards and the debacle that unfolded as the country looked on.

So while the compliance training world is focused on sexual harassment training (especially with the AB 1825 retrain year almost upon us), pause to consider how you are addressing education about e-mail and Internet use, as well as basic workplace privacy protections.  A good harassment training course can seamlessly weave these topics into the program, and at least provide employees with “awareness level” knowledge.  If you have the time and resources, invest in a separate electronic resources / privacy training program.  At ELT, we call this “Cyber Policy” training.  Whatever you may choose to call it, it’s a small investment that can truly pay big dividends.

Tags: computer, email, Ethics Training & Compliance Training, internet, policy, usage,