Emails Are Business Records, So Think Twice Before Sending

shutterstock_572363164With email, texts, and other e-communications increasingly flowing as freely as spoken conversation, we risk losing sight of the fact that anything sent through the internet is permanent and may someday have relevance in the legal life of a company.

A recent opinion by a U.S. District Court in Alabama underlines just how true this is. The court denied a motion for summary judgment by Wells Fargo, the defendant in the case, due to a single email sent by a supervisor.

In 2012, Deborah Stewart was hired by Wells Fargo as a treasury management sales consultant for Tennessee and Northern Alabama. According to the company, Stewart’s performance consistently fell short of expectations. She failed to meet her sales goal during her first year. In 2013, she fell shorter still, resulting in an informal warning. Citing lack of evidence of improvement, Wells Fargo issued a formal warning in June of 2013.

One week before her warning, Stewart had been diagnosed with myelopathy and scheduled for surgery. In early July, she filed a request for a leave of absence, which was granted by Wells Fargo and designated as qualifying under the Family and Medical Leave Act (FMLA). Stewart returned to work in late August of 2013.

Stewart returned to work on limited duty. Her supervisor warned her that she was still near termination, regardless of her leave of absence. On return to full duty, Stewart’s supervisor determined she had not improved enough to continue employment. Her supervisor sent an e-mail to the Wells Fargo human resources department that detailed the performance-based reasons supporting a termination. One of these contained the comment: “Debby submits a request for a leave of absence.”

Stewart sued under the FMLA for retaliatory discharge.

Wells Fargo moved for summary judgment, but the federal court ruled in favor of Stewart, holding that the email comment about a request for a leave of absence was direct evidence of unlawful retaliation.

In support of its motion, Wells Fargo argued that the evidence of Stewart’s alleged failure to perform to standards offered a legitimate, nondiscriminatory business reason for her discharge.

In its dismissal of the summary judgment argument, the court found that the burden-shifting analysis of discrimination claims applies only in matters involving indirect evidence of discrimination. For claims involving direct evidence, such as the supervisor’s email, the district court held that a jury must determine whether the action violated the law.

The court concluded that a legitimate, nondiscriminatory business reason for an adverse employment action is irrelevant when it comes to summary judgment motions in cases where there is direct evidence of discrimination.

For employers and employees, there’s also that larger takeaway: Emails and other electronic communications are business records that can become subject to disclosure in litigation. Employers should train their employees, especially supervisors and managers, to use such communications carefully and appropriately, and avoid inadvertent comments that may have legal repercussions.

If you need advice about risk management or communications training for your employees, we can help. Contact your Axiom representative to find out more.

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