New Jersey Gov. Chris Christie learned the lesson the hard way: Be careful what you and your employees put in electronic writing, because it could come back to haunt you.
Even the least savvy manager out there knows that memos often are circulated around the office, but sometimes caution goes out the window when it comes to emails and texts. Use the bridge scandal as a strong reminder that even digital communications are just as discoverable and can be just as damaging.
The story sounds like something out of a dirty politics playbook. In September, two lanes of traffic were closed on the New Jersey side of the George Washington Bridge, the heavily-trafficked commuter route between New Jersey and New York. This led to a massive weeklong traffic jam that irked tens of thousands of people. It especially hit hard in the New Jersey borough of Fort Lee.
The only explanation offered for the closure was that the transportation department was conducting a “traffic study.” Rumors started circulating that the bridge closure was actually political retribution aimed at Fort Lee’s mayor, who had endorsed Christie’s opponent during the 2013 gubernatorial campaign. The Christie administration scoffed at such rumors, calling them nonsense, and the governor himself publicly denied any such motivations.
Months later, emails and texts emerged among the governor’s top aides that seemed to show that political hijinks were behind it all. “Time for some traffic problems in Fort Lee,” wrote one of Christie’s top aides in an email to a colleague. Once the traffic jam ensued, the same aide sent a text stating, “Is it wrong that I’m smiling?” As Fort Lee’s mayor scrambled to address the traffic snarls, Christie’s campaign manager wrote, “The mayor is an idiot.”
The revelations of these emails have led to accusations of criminal wrongdoing and legislative investigations, and caused Christie to publicly shame and terminate his top aide. Also, although no evidence has come forward that Christie had knowledge of the behavior, the scandal could dent his chances of becoming president in 2016.
The emails and texts from the Christie camp were unearthed via subpoenas and public records requests. Should private employers have any concerns? They should have plenty, actually. That’s because there are at least two separate ways that communications can one day be revealed to parties never intended to be recipients.
The first is through discovery in a lawsuit. A lot of employers are astonished to find out how broad the scope of discovery is even in a single plaintiff lawsuit. Did you know that a company may have an obligation to turn over each and every document relating to a disgruntled employee and his interactions with co-workers, and perhaps even each and every document sent between managers relating to that employee?
The second way employees might get their hands on these communications is through simple requests for their personnel files. Most states allow employees to request and receive a full copy of their personnel file at any time during their employment, and for a certain period of time after they have left the company.
And the scary part is that the “personnel file” may be much, much broader than the few documents in that manila envelope kept in the human resources office. Depending on the state’s definition, it may include each and every document that a company could have or did refer to when making any decision about the worker’s employment. Besides personnel change forms and formal evaluations, this might include disciplinary notices, informal notes on performance, quick messages commenting on the employee, or similar information.
And as you might be starting to figure out by now, these requests would not be limited to written documents printed and signed by managers. They almost certainly would include emails and text messages.
As an example of how this might come back and sting a company in the future, consider this real-life scenario I dealt with a few years ago. I was representing a company that employed an aggressive and over-eager risk manager who saw it as her mission to rid the workforce of poorly-performing workers. One particular individual was getting under her skin and was on the verge of getting fired for absenteeism. When the risk manager learned through an email that the worker was absent again, she immediately responded by forwarding the email to her boss saying, “We get to fire his *** today!” She then concluded the email with a smiley face.
Unfortunately for the risk manager, this email was deemed to be part of his personnel file, and he was provided a copy of the email along with the rest of the file (including several other derogatory and demeaning messages from the risk manager) when his lawyer was looking into suing the company for wrongful termination. This single email may very well have doomed the company’s chances of properly defending the case, and led to a negative result for the company.
Because professionals are now in the habit of using text messages to communicate with colleagues, supervisors and subordinates, they must take caution by recognizing that these messages could be considered part of the official company records — and one day be viewed by the employee that is the subject of the email … and worse, the employee’s attorney … and even worse, a jury.
Digitally-savvy professionals may believe they already have a solution to this problem — they use one of the newer messaging services available on smartphones and tablets that allow for messages to disappear forever after a certain period of time. Snapchat alone sees over 400 million messages daily, but there are many other services out there courting the professional market promising the benefits of confidentiality and discretion.
However, as the ever-evolving world of digital communications runs into the slower-moving world of litigation, be very cautious when employing one of these newer services. A court might very well conclude that there was a reason that these messages were set to self-destruct, and you could be on the wrong side of crippling legal sanctions that would make you wish you never hit the send button.
Rich Meneghello is a partner in the Portland, Ore., office of Fisher & Phillips LLP. Contact him at (503) 205-8044, or follow him on Twitter — @pdxLaborLawyer. A version of this column originally appeared in Daily Journal of Commerce (Oregon), sister publication to The Daily Record.