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Here’s a lesson from a recent case about preventing e-mails from being used in court against the company:
A company performed a self-audit to make sure it was complying with the FLSA’s overtime regulations. After investigating, the company’s attorney concluded that several IT employees were mistakenly c lassified as exempt.
The lawyer e-mailed the HR department, recommending the company change the classifications or risk being sued. The employees were reclassified, and the attorney’s message was forwarded to some members of upper management.
Although the e-mail was only supposed to be read by managers, it was mistakenly sent from a supervisor to an employee. The message made its way around to all the affected employees. They sued the company, seeking a payout for the time they worked while classified as exempt.
The company claimed the e-mail was protected by attorney-client privilege and couldn’t be used as evidence in the case. It asked the court to make the employees destroy all copies of the e-mail.
Did the court agree?
No, the judge ruled the e-mail wasn’t protected. When the advice was forwarded to managers, HR gave no indication it originally came from a lawyer or that it should be kept confidential.
Companies waive their right to attorney-client privilege, the court noted, when they forward documents to others or take no care to keep them private. As a result, the employees’ lawyers were allowed to use the e-mail in court.
The lesson for employers: In most cases it’s best to talk about sensitive legal issues in person. E-mail creates a permanent record that can easily fall into the wrong hands.
Cite: Clarke v. J.P. Morgan Chase & Co.
