Probably the greatest change in employment law cases over the past decade has been the impact of emails and texts when piecing together the real reasons for a termination. When we first began litigating Employment Law Cases it was often hard to get a case to a jury because an employer would claim a legitimate reason for firing the employee and unless an honest independent witness could be found, refuting the reason could be very difficult. Then that all changed. Hello computers. Now most everyone communicates via email. Although companies try to be cautious of what they write it can be hard. A quick message to a co-worker complaining about a medical leave request or the annoyance of accommodating a disability can reveal the true motives behind a termination. Of course, this is a two way street. Employees picture of a wild night out on Facebook the day before the call in “sick” can sink a case just a quick.
A great example of the impact of emails can be found in a Family Medical Leave Act retaliation case that was recently filed. In this case, a director of communications asked of FMLA leave for knee replacement surgery. He informed his boss that he would need six to eight weeks of leave to get better. Ten days after the request the boss recommended that the employee’s position be elimated and he was terminated.
After the lawsuit was filed the company claimed that the FMLA request had nothing to do with the layoffs. After all the economy was sluggish and other layoffs had been made as a result. So how can the employee that this isn’t true? Well a decade ago he probably couldn’t have proven the real motive be an unguarded email changed everything. Specifically, after the case had started a review of the company emails revealed a message from the boss that basically said we may as well lay the employee off because he will be on leave anyway. So now the employee has enough to take his case to the jury. He can present facts that can put the termination in real light. How long had he worked there, his good employee reviews, raises, all that he did for the company.
So both employees and employers should take a lesson from this. I don’t think the lesson is “be careful what you say in your emails.” The lesson should be lets treat people right under the law. As a boss, don’t be flippant about an FMLA request because you may be asking for it someday. People need a little help sometimes and that is okay. However, we all know there will be good employers and bad employers. As such, for the bad employers you better watch what you say in those emails because I guarantee that we are going to review them all.
If you have a Family Medical Leave Act question or other legal question, call one of our Tennessee Labor lawyers today.