3. Consider a phone call for sensitive
issues. Avoid emails when a phone call
or a meeting would be more appropriate.
Employees should be cautioned to think
before they commit a random thought to an
email that can become a permanent record.
To: U.R. Smart
From: I.M. Dumm
Re: Contamination Issue
I think I really screwed up. I forgot to review
the plan for boiling the new product to
make sure that it’s safe for processing. I
guess this is just another of the many mistakes we’ve all made on this project. I’ll talk
to the team about it, I guess.
4. Don’t render an opinion on company
liability. Try to avoid expressing an opinion
on liability unless the employee has been
asked to do so. Words such as “
dangerous,” and “defective” are powerful, and
should not be used lightly. Employees
should be instructed to not put on their
“lawyer” hats if they do not work in legal
roles. Furthermore, if an email is going to
document a problem, the employee should
be advised to note the steps that have been
taken to resolve it. For example, employees should be told to be vigilant about
health and safety, but avoid speculating
about liability in an email:
To: O.H. Boy
From: Dee Fendant
Re: My 2 Cents
I’m sitting here at my kid’s soccer game
and had a thought to pass along to you. I’m
not a lawyer, but I am guessing that we are
violating federal regulations by not reporting the dangerous contamination problem
I think I saw last week. Should I get measured for an orange jumpsuit?
Employees should make every effort
to write accurately in emails. Emails are
all too often written in a hurry. Employees
should be urged to avoid speculation and
to reflect before committing information to
writing. Employees need to be reminded
that an email written “off the top of one's
head” can be turned into the “gospel” by
an adversary in litigation. Similarly, emails
should not be a vehicle for letting off steam.
Certainly, a company should have a quality control protocol and should pursue any
performance-related issues. An employee,
however, may be totally off-base in his or
her comments, or may rush to judgment.
The unfortunate company may never get a
chance to clear up the email at trial.
The net-net for any food company is that
investing in an effective email training program can pay huge dividends.
As with any policy, it is important to
communicate it to all employees, secure
company-wide support and enforce it
consistently across the board. By doing
so, any food company can avoid its adver-
sary from being armed with a lawsuit silver
About the author
Mr. Levine is a Co-Chair of the Litigation
Department at Herrick, Feinstein LLP, with
offices in New York and New Jersey.
He concentrates in representing food
and beverage manufacturers, and conducts
seminars for companies on “safe writing”
and the implications of social media.
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