Question: For weeks our management team has been trading internal emails discussing why we need to terminate an employee who isn’t meeting performance standards. In the most recent email thread, one manager said that he wants to move more quickly to fire the employee because the employee reported workplace harassment a few days ago and the manager thinks the employee just has a persecution complex. These conversations are confidential, right?
Answer: No, internal email communications aren’t protected from disclosure to a third party in the event the employment action is legally challenged. Email communications constitute business records that are subject to subpoena in litigation, or during an investigation by the Equal Employment Opportunity Commission (EEOC) or other government agency that enforces employment laws. In fact, internal communications (verbal or written) related to an employment decision can be critical evidence to establish the company’s motivation and intent behind the action. To the extent that any internal records suggest retaliation as a motivating factor for an employment decision, the company is at risk, and will have some explaining to do.
So what can you do now? Get the group back on track and proceed to make the decision solely based on lawful factors, while creating a record that identifies the specific job-related reason(s) for the employment action. Managers and HR must keep personnel information and other business information (such as trade secrets and financial data) confidential. For example, you should not be copying a non-managerial employee on these discussions. However, managers and HR should be aware that the company cannot withhold business records based on confidentiality if they are relevant to a legal claim or complaint. Finally, the harassment complaint should be taken seriously, fully investigated by HR, and not at all considered in the performance management context as you move forward. For specific advice on investigating harassment allegations or addressing poor performance, contact your Vigilant Law Group employment attorney.
