Are You Creating A Record That Might Hurt You?

If you’re going through difficult times on the job, you might be emailing or texting coworkers, friends and family about your situation.  You might be posting comments on Facebook, or MySpace or on another site.  You might be writing in a notebook, diary or jotting notes on a calendar.  And others are probably writing you back.

Keep in mind that anything you put in writing might have to be turned over if you choose to file a discrimination complaint or lawsuit.   Think twice before putting your thoughts in writing.  They could come back to bite you.

Here are some common problems I see or hear about:

  • Emails, texts or postings privately written by an employee to coworkers or friends, that insult bosses or coworkers.  This can make the author look as much like a cause of the problem as a victim.  It can sure turn a jury off.
  • Emails, texts or postings that tell the recipient(s) what to say if asked, or what not to say.  Included in this category are any writings that include discussion about a pending complaint, grievance or lawsuit, even if it’s just informal chit-chat.  These can leave the impression that the victim is trying to manufacture a lawsuit, or is trying to hide evidence or information that would hurt their claims.
  • Diaries or journals that are being written to document events, but that aren’t regularly maintained.  An employee might only write when he or she has time to write, but isn’t writing consistently.  Sometimes, I’ll see a journal that only has entries when the person feels their job is in immediate jeopardy; they won’t write anything when they don’t feel an imminent threat, even when there are key events that could later put the employee at risk of being fired.  The result is that the journal or diary actually isn’t an accurate record.  Jurors may assume that if you went to the trouble of starting a journal, that you’ll write down all important events, and if you didn’t write something down, it didn’t happen.  If a journal isn’t done in a consistent manner, in other words, it can actually become a tool against the author (you).
  • Emails, texts or postings that quote the person’s lawyer (“Mike, my lawyer says today that you’re going to be an important witness.  He says my case has the following weaknesses, though, so I’m counting on you to help me out.”)   A person being represented by a lawyer should never quote conversations with their attorney.  Those conversations are protected from disclosure by law.  This protection can be lost if the client discloses the lawyer’s comments to others. The damage can be permanent and devastating.  The same is true of communications by a client that reveal the lawyer’s strategy, advice or guidance in a way that makes it clear the information came from the lawyer.
  • Emails or postings that brag about suing the employer, or that brag about what the employee/client might win at trial or be paid in settlement.  This kind of comment (“They’re going to buy me that beach house I always wanted when this is over’) looks terrible to a jury.  And it can turn off decisionmakers who might have otherwise been willing to pay something in settlement.
  • “Anonymous” emails, texts, postings or memos, which in this era of digital trails are almost never truly anonymous.
  • Emails, texts and postings written by a spouse, or others on your behalf.  They count, for better or worse, as well.
  • Emails, texts or postings that encourage others to delete the messages or other evidence.  (“Dave, my lawyer says all our emails are going to have to be turned over. I want you to delete them all ASAP!”)  It goes without saying that this should never be done. Destroying evidence leads to terrible outcomes (dismissal of your claim, fines and other sanctions, or worse).  Once you create a writing of any kind, you’re probably stuck with it, for better or worse.

So, be careful about what you put in writing, in any format.   Emails, texts and postings can do serious harm to your case.  This isn’t to say that writings don’t serve a helpful purpose.  They sure can.  It’s all about pausing for a moment before clicking “send,” and asking yourself, “What purpose will this serve?  And what harm might it cause?”

Of course, if it’s something you need to put in writing – a workplace complaint or response, as just two examples – always ask your lawyer for guidance before doing so.

An ounce of prevention is worth a pound of cure.

Categories: Complaints & Documentation, Discrimination, Retaliation, Wage & Hour/Overtime, Whistleblowers

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