Imagine discussing an employee-related legal concern with your boss, in-house counsel or outside labor attorney, only to realize that you wrote something in an email or instant message that could devastate your case in litigation. Have you ever heard something like: "Paul, don't worry. As long as you didn't reference his age in that email or refer to him as a dinosaur or anything similar, we'll be fine. ... Wait, you didn't commit that to an email, did you?" (Gulp!)
Time to 'fess up. If you did it, own it. But now, of course, it's too late to undo your mistake. Instead, you'll have to find that email and prepare a defense around why you may have written it that way, or you'll fall on your sword and confirm that you were wrong to reference a former employee's age in the context of a performance review.
Whatever your response, your company will have to dig itself out of a legal hole and overcome a setback that will clearly be exploited by a plaintiff's attorney: "Mr. Falcone, I see that in your email from Dec. 11, you referenced my client as a dinosaur—someone from the prehistoric days before computers. You appeared to be making a joke about it in your exchange to Patricia Murphy. Did you find it funny at the time? Was your intention to get a laugh at my client's expense? Maybe you were looking to denigrate and humiliate him in the eyes of your peers. Could that have been the case?"
If only you had known at the time that this particular email—one piece of electronic...
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