Employment Law – A Fable: What the “E” in Email Stands For

by Philip A. Toomey | Partner

Once upon a time, in a gentle land, lived an employer.  She normally communicated with employees by speaking words out loud. Every now and then, when faced with something very important, she might write a letter or memorandum. Time went by, and things were good.

One day, a strange and marvelous machine arrived. It was called a desktop computer. Soon it had miraculously multiplied and shrunk, capable of being carried in a small pouch or pocket. These smart gadgets carried with them an amazing contrivance called “email.”  Words could now be instantaneously and invisibly sent at all hours of the day and night, even if the other person wasn’t there to hear them. And even if the person sending the words was angry, distracted or intoxicated. The employer thought “e” meant “electronic.” She was soon to discover something quite surprising.

She first found out “e” stood for “eternal.” Words, once said face-to-face and then fading like vapor in the morning sun, were now saved in a mysterious place call cyberspace, or on a cloud somewhere she could not see. She suddenly awakened to the awfulness that in this brave new world, no word, remark, document or photograph ever departed.  And to her dismay, she discovered even when her employees knew words would be around forever, they still wrote them as if easily discarded.

One day, a foreboding visitor arrived from Mordor. His name was “lawsuit”. He and his henchmen called “litigators” consumed, without mercy, time, business opportunities, energy and cash. It was then she discovered the once gentle Shire had been distorted into a litigious Fire Swamp. And the “e”, likewise, malformed into the word “evidence.” Those once marvelous gadgets, surrendered into the hands of wizards known as forensic examiners, turned on their masters and tweeted, twittered, texted and  surrendered numerous, and sometimes quite interesting, words she or others in her employ had said long ago in a previous era. Words forgotten, spoken in the heat of the moment, or which had already been ransomed, were now fodder for the insatiable appetite of the monster lawsuit, and his notorious brute squad, affectionately known as “billable hours.”

Only too late she sought Miracle Max. When Max asked if she had an “email etiquette policy”, a quizzical look came to her face. And then she laboriously trudged to the mandatory settlement conference in the far off castle known as “court.”

The moral of this story is simple. When traveling through the litigious forest known as California, any employer is well advised to heed, and teach for all posterity, the wise proverb of Max: “Keep your words short and sweet, you’ll never know which ones you’ll eat.”


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