Email is Evidence

Email is Evidence

A recent survey completed by Workfront, a project management software company, confirms the already well-documented fact that email use in the workplace needs to be better managed. The survey, The State of Enterprise Work, concluded: “Email, for all the problems it solves, seems to be creating new problems as it is stretched far beyond its original purpose, stealing workers’ time and preventing them from finding critical project information.”

Among the most common workplace gripes about email:

  • Using lengthy emails to relay info what would be better conveyed face-to-face or through a phone call (55%)
  • Following a conversation through lengthy email threads (55%)
  • Getting copied on emails that are not relevant to your work (54%)
  • Unnecessary “reply all” responses (50%)

The solution? Before sending an email, ask if there is a more efficient and effective means of transmitting information or asking a question. More often than not, there is.

The business reality of too many emails in the workplace has legal ramifications, as well. When lawyers hear the term “e-mail,” however, they do not think “Distraction.” They think “Evidence.”

And it is.

Any lawyer will tell you that the first place they go for evidence in a case is to email. Consider the case of Stewart v. Wells Fargo, where a sales consultant was terminated after a year and a half on the job for poor performance. The evidence was undisputed that the employee performed poorly as evidenced by her low sales numbers, which were at about 1/3 of her quota. ( She was issued an informal warning after a year on the job and two months later, she was given a formal written warning. Two weeks after receiving the written warning, the employee took a five-week FMLA leave to recover from surgery. When she returned to work, her supervisor reminded her that she was still working under the formal warning. After she failed to improve, she was terminated.

So far, so good. – Bad numbers. Check. Warnings issued prior to notice of medical condition and the request for leave. Check. Lack of improvement after the warning. Check. Termination justified.

But, in the words of Lee Corso, “Not so fast, my friend!”

It seems that the employee’s manager sent HR an e-mail detailing his performance-based reasons for the termination, gratuitously adding as a justification, “Debby submits a request for a leave of absence.” Based on that email alone, the judge refused to dismiss the employee’s FMLA retaliation claim, finding that the email showed that she may have been terminated not simply because of her performance, but perhaps in part because she took FMLA leave.

What should have been an easy dismissal wasn’t because of what most likely was a casual, incidental observation, dropped in an email, that had no real bearing on the company’s decision.


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Bill Egan

Bill Egan

I have 30+ years of experience representing executives, business owners, private enterprises and small-to-midsize public companies as an advisor, counselor and advocate on matters relating to the employment relationship. Informed by years of experience with both routine and unusual employment relationships and workplace situations, I bring a pragmatic, realistic and results-oriented perspective to issues arising in the workplace. Read Bill's Bio.

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