Email Communications with Lawyer, Quirky Question # 18
Quirky Question # 18:
We recently terminated one of our executives. One of our standard practices when we terminate a senior executive is to check carefully his/her email communications for the preceding twelve months. When we checked this executive’s email communications, we discovered approximately eight messages to and from a private law firm. The message subject line was: “Personal, My Discharge.”
We briefly skimmed these messages and found that they were communications between our former employee and her lawyer regarding her termination and potential claims she could bring against our company. What can we do with information? Can we share it with the company’s attorneys? Was it a mistake for us even to have skimmed these emails? (Incidentally, we have a “Computer Use Policy,” stating that the company owns all computer equipment and that we reserve the right to review any and all email communications sent on company computers.)
Roy’s Analysis:
Like several other Quirky Questions already addressed, your inquiries illustrate further how technological changes are changing the types of questions companies are routinely confronting in the workplace. The fundamental question you pose is whether the communications between your former executive and her private counsel are encompassed by the attorney-client privilege and whether that privilege has been waived by the executive’s method of communication. A subset of that question is whether the messages sent from your former executive should be treated any differently from the messages sent by the attorneys to your former executive.
There is surprisingly little case law on this issue. Clearly, the substance of communications between an individual and his or her lawyer are typically encompassed by the attorney-client privilege. Had your former employee sent a letter to her lawyers seeking guidance on issues relating to her discharge, your company would not have been able to obtain that letter in discovery. If your company had inadvertently received that correspondence because it was misaddressed, you would have been obligated to return it unread. Had your former employee orally communicated the content of the emails to her lawyers, again these communications would be privileged.
The attorney-client privilege, however, requires those claiming its benefits to make reasonable efforts to ensure the confidentiality of the communications. Thus, a letter that had multiple “cc” recipients other than the lawyers to whom it was addressed would not be protected by the attorney-client privilege. Similarly, an oral communication made in the presence of others with whom no privilege existed would be undeserving of protection.
Arguably, given that your former employee used your company’s email system to communicate with her lawyers, the attorney-client privilege has been waived. This is especially true in light of your company’s well-defined (and, I will assume, well publicized) policy, stating that your company reserved the right to monitor all email communications.
There is not much case law on this subject, but there is a relatively recent decision out of New York implicating these same issues. In Scott vs. Beth Israel Medical Center, Inc., No. 602736/04 (New York Supreme Court, New York County; Oct. 17, 2007), the court found that a fired employee who communicated with his private employment law counsel via the company’s email system did not have an “expectation of confidentiality,” and had waived the attorney-client privilege. As in the fact situation you describe, the employer in the Scott case had an email policy that provided for the possibility of employer monitoring, a fact on which the court relied in reaching its decision. Beth Israel’s policy also prohibited the use of the company’s email system for personal reasons. According to the court, Beth Israel’s e-mail policy states that its e-mail system “should be used for business purposes only,” that documents sent over the system are the property of the medical center, that employees have no personal privacy rights in such material, and that the medical center “reserves the right to access and disclose such material at any time without prior notice.”
The court also rejected the notion that the standard disclaimer language at the end of the emails from the law firm to the executive created an expectation of confidentiality. “When client confidences are at risk, [the law firm’s] pro forma notice at the end of the email is insufficient and not a reasonable precaution to protect its clients.” Thus, the attorney-client privilege was not available for the emails either to or from the law firm.
Interestingly, unlike your situation, in the Scott case, the medical center did not review the emails. In that case, the employer notified the former executive’s attorneys that it was in possession of the unread emails and that it believed the attorney-client privilege had been waived. The employee’s law firm then raised this issue with the court, which rejected its claims of privilege.
Although the New York case is useful guidance, I urge you to move cautiously. If a court in your jurisdiction did not follow the approach of the Scott court, you would risk disqualifying your law firm if you shared the emails with your lawyers and they read these communications. Depending on the content of the communications, you might expose yourself to other sanctions as well.
I suggest you take the following steps. First, preserve the emails carefully. Second, do not allow anyone else, including your outside counsel, to read (or even, skim) the emails until you obtain judicial guidance. Third, notify your former employee’s attorneys that you are in possession of the emails and that you will be seeking a judicial determination on whether the attorney-client privilege was waived by your former employee’s use of the company’s email system to communicate with his private counsel. Fourth, file a motion seeking guidance from the court on whether the attorney-client privilege has been waived. In that motion, you will be able to point out all of your company’s policies demonstrating that there was no expectation of privacy or confidentiality with regard to personal emails sent out over your company’s email system. (To the extent that your former executive ever previously articulated a position on the lack of confidentiality associated with your email system, you should be able to exploit that fact.)
By taking these conservative steps, you will maximize your chances of being able to share the email communications with your counsel and use them effectively in the litigation. You also will minimize the risk that a court will find that any improper conduct associated with your review of the communications between your former executive and her counsel.
Protecting the Company’s Public Image, Quirky Question # 17
Quirky Question # 17:
We run a retail clothing firm. Our goal is to cultivate a youthful, preppy image. We prohibit “facial jewelry” with the exception of earrings. This prohibition is set out in our Employee Handbook.
One of our employees insists on wearing “facial jewelry,” displaying various facial piercings. Can’t we prohibit this practice? Can we tell our employee to choose between her facial jewelry and employment with our company?
Roy’s Analysis:
Companies have a legitimate interest in, and right to control, their public image. Companies, therefore, can regulate employees’ attire and appearance. Few would question whether companies have the right to regulate the type of clothing employees wear, so long as the regulation is reasonable and applied uniformly (no pun intended). For example, employers may legitimately require employees to wear shoes, or otherwise regulate footwear (whether for safety or other reasons). Employers may regulate the types of clothing worn by employees (e.g., no shorts, no bathing suits, no tank tops, etc). Employers may require certain uniforms.
Similarly, employers may regulate the types of “facial jewelry” worn by the employees while they are at work, particularly where the piercings are inconsistent with the image the company seeks to project. In my view, your company is within its rights to prohibit facial jewelry and could force an employee to choose between continued employment and this particular form of self-expression.
On the other hand, a thoughtful client of mine once remarked in regard to a male employee with particularly long hair: “It’s not what’s on his head, it’s what’s in it that matters to me.” Do you want to fire an otherwise high-performing employee simply because he/she has a piercing in her nose or eye-brow? Your call.
A middle ground your company may wish to consider could be the adoption of a more flexible policy, differentiating between the types and number of facial piercings. Of course, the problem with any “flexible” policy is that it requires more thoughtful and even-handed enforcement, with correspondingly more careful training of those who enforce the policy. You do not want to create a situation where differential enforcement leads to claims of discrimination, with the facial piercings policy identified as merely a “pretext” for discriminatory discharge decisions. Similarly, you do not want to create a policy where the exceptions have swallowed the rule.
Interestingly, your fact pattern is similar to a case that arose several years ago (Cloutier vs. CostCo). In that case, the employee claimed that her facial piercings were related to her religious beliefs, albeit with a non-mainstream religion. She claimed that she was member of the “Church of Body Modification.” The federal Court of Appeals for the First Circuit did not buy it, affirming the trial court’s dismissal of the case on summary judgment. The appellate court concluded that CostCo had the right to control its image, which extended to determining the type (and quantity) of permissible facial jewelry.
Would the same result would have ensued if the employee’s appearance or attire were connected with a religious institution somewhat more widely recognized than the “Church of Body Modification?” Another question for another day.
Racist Ideas, Quirky Question # 16
I am both disappointed and embarrassed to report that one of our employees is an outspoken White Supremacist. His views are abhorrent to me personally, as well as to nearly all of our company’s employees, both minority and non-minority. The organization to which our employee belongs advocates violent conduct toward minorities. Given that fact, should we take any action? Can we fire this idiot? (That’s my preference but I admit he has never engaged in any violent conduct in the workplace.) If he ever engaged in any violent conduct in the workplace, as espoused by the organization to which he belongs, could the company be held liable?
I would strongly recommend against the “Do Nothing” approach. Although the risks of physical violence to members of your workforce may be extremely low, the potential consequences of violent behavior by this individual are extremely serious, especially since the company is on notice of his racist beliefs. On the other hand, I certainly understand that your company may be reluctant to discharge an employee solely because of the organization to which he belongs, no matter how unpalatable the belief system advanced by the organization.
At a minimum, however, the situation should be monitored very carefully. If the employee articulates his hateful beliefs in the workplace, discharge him. If he brings literature into the workplace advocating violence toward minorities, discharge him. If his conduct toward minorities is antagonistic or belligerent, discharge him. In all of these contexts, the company’s discharge position will be easily defended, inasmuch as the employee undoubtedly would be violating your company’s proscriptions against discriminatory conduct and would be creating a hostile and offensive working environment for your employees.
The tougher call is whether you should fire the employee in the absence of any violent conduct (and you stated that he has not exhibited any to date) and in the absence of specific conduct at the worksite that would warrant a discharge (as described above). [I wonder, however, how you know the employee is a member of the White Supremacist organization? Did he share his beliefs with his co-workers? Did he attempt to interest others in the organization? Did he exhibit behaviors in the workplace that led others to question him? If those questions are answered affirmatively, go back to the preceding paragraph for the solution.]
Even if he is not a manager and has no supervisory or hiring/firing authority, does he have to work with other employees? To the extent that the employee must interact regularly with others, if his perspectives and attitudes are well known to his co-workers, allowing him to continue working may be very disruptive. It would be difficult to establish a collegial, professional and productive working environment for a diverse workforce when one member of the group holds views deeply offensive to others. Given that fact, it may be appropriate to terminate the employee even in the absence of specific threatening conduct or workplace proselytizing.
Another reason to consider discharge is that if the company allows the employee to continue working and a tragedy ensues, the company may be at risk. This is the situation in which Lockheed Martin found itself several years ago. In the case of Tanks v. Lockheed Martin, a former Lockheed Martin employee who belonged to a racist organization that advocated violence toward minorities came to work and murdered and wounded several African American and Caucasian co-workers before killing himself. According to the Complaint, there had been numerous incidents over many years that put the company on notice of the employee’s violent proclivities and his racist beliefs, including specific threats of violence toward minority co-workers. The question presented was whether the company could be held liable for this tragic event under various common law theories. The federal District Court rejected the Lockheed Martin’s summary judgment motion, seeking dismissal of the case based on the exclusivity provisions of the Mississippi Workers’ Compensation Act. Although the District Court rejected the company’s arguments, it did certify an interlocutory appeal to the Fifth Circuit Court of Appeals. Somewhat surprisingly, the appellate court reversed, finding that the actions of the murderer fell within the exclusivity provisions of the Workers’ Compensation statute. See, Tanks v. Lockheed Martin Corp., 417 F.3d 456 (5th Cir. 2005). The resolution of the Tanks case (and other related cases) from that point forward is unclear.
Putting aside the question of whether the applicable workers’ compensation statute may provide the exclusive remedy for violent workplace conduct, the cases involving violence by one employee toward another often turn on the issue of whether the company knew or should have known of the violent propensities of the employee who caused the injuries to a co-worker, or at times, a member of the public. These types of cases implicate issues of negligent hiring, supervision and retention. These issues, however, will be addressed in future Quirky Question analyses.
In a brief, unpublished, per curiam, decision, announced just last week, the Fifth Circuit affirmed the summary judgment dismissal of the claims of all of the other plaintiffs injured by the “deranged employee who went on a violent rampage at work.” The appellate court found that the Tanks case was “factually and legally indistinguishable from the case here.” Therefore, the court held that the claims of all of the other plaintiffs were “exclusively compensable by state workers’ compensation laws.” See, Bailey, et al. vs. Lockheed Martin Corp., et al., No. 07-60399 (5th Cir. January 17, 2008). Barring further appeal, this ruling seemingly has brought the litigation to an end.
Disability Discrimination, Quirky Question # 15
Quirky Question # 15:
We have a manufacturing company and we use multiple shifts to operate our plant. We run three shifts daily (7:00 a.m. to 4:00 p.m., 4::00 p.m. to 11:00 p.m., and 11:00 p.m. to 7:00 a.m.) We recently reassigned one of our employees to the third, and latest shift. Our employee balked at this assignment, advising us that his wife has Sleep Apnea and cannot go to sleep unless he is present. Would we be in violation of the Americans With Disabilities Act if we insist that the employee work the 11:00 p.m. to 7:00 a.m. shift?
Roy’s Analysis:
Your question implicates both legal and practical issues. From a legal perspective, the answer to your inquiry is “No.” Although the Americans With Disabilities Act (ADA) does include a provision that prohibits an employer from discriminating against someone because of that person’s “association” with a person with a disability, that provision does not extend to the fact pattern you presented.
For example, your company could not refuse to hire the parent of a disabled child because you were concerned the employee was likely to have attendance problems. Such a decision would violate the ADA. Similarly, your company could not refuse to hire the spouse or partner of someone who is HIV-positive because of an irrational fear that the virus could be transmitted to another employee. Again, such a decision would violate the ADA.
Even if we assume for the sake of discussion that “Sleep Apnea” is a disability (perhaps a close question in itself), this means that you could not refuse to hire this person out of a fear that his wife’s condition might interfere with his ability to work. But, under the guidelines promulgated by the Equal Employment Opportunity Commission (EEOC), a reasonable accommodation is something that an employer must provide only when an employee him/herself is “disabled.” There is no obligation to provide an employee an accommodation because that employee is associated with someone else who is disabled. Given that fact, your company has no legal obligation to give this employee any preference in scheduling, allowing him to forego working your “midnight shift.”
Perhaps, however, the analysis should not end there. Even if your company had the right to insist your employee works the final shift, should it? Let’s assume that your company rotates its employees among the three shifts on an equal basis, with each employee working four months annually on the latest shift. How important is it to your company that this particular employee work that shift each year? I recognize that this issue implicates questions which the company is best positioned to assess – how many employees work the late shift; would other employees resent it if this particular employee was not required to work this shift, especially if they understood the circumstances; how difficult would it be to find another employee to work the shift instead; have other employees requested relief from working the night shift; etc. You might discover, however, that you have another employee who prefers working the latest shift and who would gladly exchange shifts with the employee who has requested the accommodation.
Even if that solution did not present itself, there are a few other inquiries you might wish to consider – how would other employees feel if you did not accommodate this employee under these circumstances (e.g., would the decision be perceived as another indication of the company’s inflexibility towards its employees); or, is the employee likely to quit if no accommodation is made and, if so, would the company regret its decision (e.g., if the employee was a committed, high performing, loyal employee). Alternatively, what if your employee did not have the financial flexibility to quit and explore alternative employment and, resentfully, worked the third shift. How would you feel (and how would your other employees feel) if there was a tragedy during this period due to the employee’s wife’s Sleep Apnea?
If your analysis of these issues would cause the company to feel differently about this issue, there should be some creative solutions to the problem you are confronting. For example, you might want to work with the employee to explore whether there are technological solutions to the problem he is confronting (equipment that awakens someone who is having difficulty breathing). (Coincidentally, in yesterday’s Star Tribune, there is a reprint from the Wall Street Journal, Sunday, entitled “Testing for Sleep Apnea,” January 13, 2008, p. D-6, addressing some of the developments with regard to testing for this medical problem.)
The bottom line is that understanding your company’s legal rights is a critical first step. At times, however, this understanding simply helps you frame other equally important inquiries.
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