Employers May Be Responsible for Employees Wrongs


Employers May Be Responsible for Employees’ Wrongs

When it comes to compliance and content, employee education is key. One of the easiest ways to control electronic risk is to manage employee behavior. Unmanaged IM and e-mail users are human time bombs waiting to detonate.

If an employee sends a series of off-color instant messages that trigger a sexual harassment claim, will the offending employee or the hapless employer be sued? Like it or not, the organization (not the individual IM user) is most likely to be slapped with what could be a costly and protracted lawsuit, potentially played out on the pages of the local or national business press.

Based on a legal principle known as ‘‘vicarious liability,’’ an employer may be held responsible for the misconduct (accidental or intentional) of its employees—even if the employer is completely unaware there’s a problem. [7] That news should serve as a wake-up call to the 25 percent of organizations that have yet to establish a written e-mail policy—the first step toward controlling employees’ online behavior. The 51 percent of employers who fail to educate employees about e-mail risks and e-mail policy compliance[8] should be equally alarmed.

It’s a safe bet that employers who have yet to establish written e-mail policies or institute employee training programs aimed at ensuring e-mail policy compliance—and reducing the likelihood of vicarious liability—are unlikely to have addressed instant messaging policy and education yet.

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Real-Life E-Disaster Story:
Employer Liable for Supervisor’s Sexual Harassment.

Can the boss be held responsible for sexual harassment—even if the employer is totally unaware of the problem? You bet. According to a 2003 California Supreme Court ruling ( Department of Health Services v. Teresa V. McGinnis), an employer is strictly liable for all acts of sexual harassment by a supervisor. Under California law, an employee can sue an employer for a supervisor’s harassment—even if the employee has never complained and the employer has no reason to suspect the harassment. [9]

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[7]Nancy Flynn and Randolph Kahn, Esq., E-Mail Rules, New York, AMACOM, 2003.

[8]‘‘2003 E-Mail Rules, Policies, and Practices Survey,’’ conducted by American Management Association, The ePolicy Institute, and Clearswift. Survey findings available online at www.epolicyinstitute.com.

[9]Susan Blitch, ‘‘Court: Firm Liable for Supervisor’s Conduct,’’ The Californian.com (February 17, 2004), www.californian online.com/news/stories/20040217/localnews/428603.html.



Establish Instant Messaging Policy and Educate Employees to Help Limit Risks

Don’t leave your organization’s assets, future, and good name in the hands of rogue IM users and careless e-mail writers. As detailed in E-Mail Rules, by Nancy Flynn and Randolph Kahn, Esq., [10] the United States Supreme Court has made it clear that the development of comprehensive policies backed by employee education may give an organization a defense against sexual harassment or hostile work environment liabilities triggered by an employee’s inappropriate acts or missteps. [11]

Don’t be deterred by the costs (in terms of financial and human resources) of e-mail and IM policy development and employee training. The investment you make today in policy and education will likely be dwarfed by legal fees and settlement costs, should tomorrow you be slapped with a class action lawsuit alleging dozens of female employees were sexually harassed by male employees’ IM and e-mail content.

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Real-Life E-Disaster Story:
E-Mail Evidence Leads to $3.75 Billion Settlement

In one well-known lawsuit (Linnen v. A.H. Robins Co. [12]), the discovery of smoking gun e-mail evidence led directly to billion-dollar settlement discussions. In the course of litigation over diet pills manufactured by American Home Products Corporation, computer forensic experts recovered an internal e-mail from one employee to another, discussing the side effects of the Phen-Fen drug.

The e-mail read, ‘‘Do I have to look forward to spending my waning years writing checks to fat people worried about a silly lung problem?’’

The employee’s insensitive comment was an apparent reference to a rare, but often fatal condition some diet-pill users developed. This smoking gun e-mail forced American Home Products to swiftly settle the case in a deal valued at $3.76 billion—the largest settlement to date involving a drug company. [13]

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IM Rule # 15: Instant messaging policy, education, and enforcement may provide a defense against vicarious liability claims.

[10]Nancy Flynn and Randolph Kahn, Esq., E-Mail Rules, New York, AMACOM, 2003.

[11]Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellereth, 524 U.S. 742 (1998).

[12]Linnen v. A.H. Robins Co., 1999 WL 462015 (Mass. Super. June 16, 1999).

[13]Richard B. Schmitt, ‘‘The Cybersuit: How Computers Aided Lawyers in Diet-Pill Case,’’ Wall Street Journal, October 8, 1999, B1. See also Kristin M. Nimsger and Michele C.S. Lange, ‘‘Computer Forensics Experts Play Crucial Role,’’ Lawyers Weekly, May 10, 2002.