Author: Brian Lewis

A recent federal court case in Boston suggests that merely distributing a policy change by e-mail does not relieve a company of its responsibility to ensure that employees are notified of the policy. E-mail is an effective and efficient way to quickly communicate with large numbers of employees. But the court’s message is that human resources professionals and managers must demonstrate more than just that the e-mail was sent, that it arrived, and that it was opened.

The burden is on you
    In Campbell v. General Dynamics Government Systems Corp., a federal court in Boston found that the company could not simply rely on an e-mail notification to show that its employees received and understood a change in company policy. Instead, the court held that it is the company’s burden, even with electronic distribution, to ensure that its workplace policies have been received and reviewed by its employees.

    The facts of the Campbell case demonstrate the importance of ensuring that electronic communications are properly distributed and monitored for their receipt. In 2001, General Dynamics distributed an e-mail containing the company’s new dispute-resolution policy to all of its employees. This was an important policy change, stating that employees would be required to agree to arbitrate any claims they might have against the company. The e-mail indicated that it was sent from “Broadcaster NDHM.” The subject line of the e-mail was “G. DeMuro-New Dispute Resolution Policy.” Gerald DeMuro was the president of General Dynamics.

    The text of the message was in the form of a letter, addressed “Dear Fellow Employees.” The first two paragraphs made no mention of the new dispute-resolution policy. Although the letter vaguely described the policy in the third paragraph, it was not until the fifth paragraph that it indicated that the new dispute-resolution policy was an essential element of the employment relationship. The e-mail letter did not mention that the company expected its employees to be bound by the policy. Significantly, the letter didnot include the dispute-resolution policy, but contained hyperlinks to the policy and to the company’s handbook, which were posted on its internal Web site.

    The company had a record to show that Campbell, the employee in question, opened the e-mail two minutes after it was sent to all employees. There was no evidence, however, that Campbell read the e-mail or that he viewed either hyperlink.

    Subsequently, Campbell sued the company for handicap discrimination in court, and the company sought to have the case dismissed because, under the dispute-resolution policy, any claim of handicap discrimination would be taken to an arbitrator, not to a court. Campbell responded by claiming that he had no knowledge of the company’s dispute-resolution policy, and therefore he was not bound to it.

    The court concluded that the e-mail distribution of the policy was not sufficient to prove that Campbell had “notice” of the policy; therefore, he could not be bound to the policy. Exhibiting a realistic understanding of what employees do with e-mails received at work, the federal court stated:

E-mail is certainly an inexpensive and convenient means of notification. But those same blessings bring with them drawbacks. Whether it is used for work or for personal reasons, most users of e-mail inevitably receive incredible volumes of messages. It is often hard to distinguish the important from the frivolous. It is not surprising that Campbell reported that he received between 10 and 100 daily, many of which were “mass e-mails relating to company functions, birthdays and anniversary announcements, and other trivial matters.” The practice of reflexively opening (so as to remove the unread tag) and deleting a mass e-mail without reading it, or even being aware of it, is not uncommon. Under those circumstances, to presume that Campbell read the text of the e-mail, clicked on its links, and read the linked documents, and use that as the basis for depriving him of rights guaranteed to him by federal law, would be to show an intolerably low level of respect for those rights.

    The court also pointed out what the company failed to do. The company did not require the employee to indicate by return e-mail that he had read the e-mail, that he had read the attachments and that he understood the implications. The company did not require the employee to reply by stating, “I accept.” The company did not configure its computer system to log when and if employees clicked on the internal hyperlinks. The only evidence was that Campbell opened the e-mail. The court held, however, that it “will not assume that Campbell was aware of the e-mail’s contents simply because he clicked to open it.”

Understanding the message
    The Campbell case raises an important issue and teaches an important lesson for human resources professionals and other individuals responsible for disseminating workplace policies. It is not enough to simply distribute a policy electronically without applying further safeguards to ensure that employees actually receive, read and understand the message.

    When distributing workplace policies electronically, companies can do a number of things to ensure receipt. A company should require employees to confirm via e-mail that they have read the policy. It should also configure its computer system to monitor access to internal Web sites and to track employee access. Failure to take these steps could mean that a company cannot hold employees to workplace policies because it is unable to demonstrate that the employee received and read the information.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Workforce Management Online, August 2004 — Register Now!

Diane Kuprewicz was angry when she lost her job at the School of Visual Arts in New York. Instead of going quietly, however, she decided to strike back. Unfortunately for the school and its director of human resources, Kuprewicz was computer savvy, and got her revenge in a very creative “21st century” way.

    First, Kuprewicz posted two authentic-looking job listings on a Web site, announcing that the school was seeking applications for a director of human resources position. The school was not seeking such applications. In addition, Kuprewicz registered the work e-mail address of the director of human resources on a number of pornographic Web sites. As a result, the director received huge amounts of sexually explicit e-mails from these sites at work. The director also began to receive unwanted catalogs of pornographic materials at work.

    Kourosh Kenneth Hamidi also sought revenge against his former employer, Intel, but his approach was more direct. After Hamidi left the company, he created a Web site critical of Intel and its employment practices. In addition, he sent mass e-mails to Intel employees at their work addresses, in which he “warned” them of the company’s unfair employment practices and suggested that they seek employment elsewhere.

    Human resources professionals have always had to deal with disgruntled ex-employees who speak out against their former employers. As these cases illustrate, however, the Internet can raise this problem to an entirely new level.

Stealing “a cow’s milk”
    In the past, unhappy former employees might have sent a letter to the editor of the local newspaper, or complained loudly to their neighbors. With the widespread availability and expansive reach of the Internet, however, these individuals have a much more effective and invasive method for harassing their former employers. For employers looking to stop these acts of revenge, or “cyber-harassment,” the use of the Internet and e-mail poses unique legal questions. The law in this area is still evolving, and employers are still trying to ascertain what rights they have to protect themselves and their current employees.

    For the School of Visual Arts, the legal solution to the cyber-harassment campaign came from a traditional cause of action, rarely seen or applied in courtrooms today, and created well before the days of computers and the Internet. The school’s solution was to sue the former employee for “trespass to chattels.”

    If a person sues another for theft, the cause of action is called “conversion”–the person converted your property to his own by stealing it. The little brother of conversion is called “trespass to chattels.” A chattel is simply an article of personal property. A claim for unlawful trespass to chattels must show that a person dispossessed another person of his property, or used or otherwise meddled with the person’s property in a way that damaged the property.

    Trespass to chattels, therefore, is something less than outright theft; it is more like unlawful borrowing. To draw an analogy from colonial times (when trespass to chattels first became unlawful), conversion of property would be when a neighbor steals your cow; trespass to chattels would be when the neighbor takes all of the cow’s milk.

    In the case involving the School of Visual Arts, the “cow” was the company’s computer system. Kuprewicz did not “steal” the school’s computer system, but she did “use and meddle” with the computer system and e-mail accounts when she caused mass e-mails to bombard the system. The school, therefore, brought suit against Kuprewicz using the theory of trespass to chattels, claiming that the chattel was the school’s computer, Internet and e-mail systems.

    The attorney for the school put forward evidence before the court that its computer and e-mail systems were harmed by Kuprewicz’s actions. The school claimed that the unsolicited e-mails from the pornographic sites depleted hard-drive disk space, drained processing power, and adversely affected other system resources on the school’s computer system. The court found that, by demonstrating that its computer system was damaged evidence, the school had established a claim for trespass to chattels, and stopped Kuprewicz from continuing her campaign of cyber-harassment.

    In Hamidi’s case, on the other hand, Intel did not put forward evidence that its computer hardware or software was damaged, or that Hamidi’s mass e-mails prevented Intel from using its computers for any unreasonable length of time. Intel, therefore, could not demonstrate any damage, and could not establish trespass to chattels.

    The Kuprewicz and Hamidi cases teach companies that, when faced with campaigns of cyber-harassment by disgruntled former employees (or customers, or clients), they can bring a claim of trespass to chattels. The cases also demonstrate that if a company can prove damage to its computer, Internet or e-mail systems, it could obtain legal relief to stop the harassment.

Weigh the cost/benefit
    The law in this area is still developing, so companies should not simply rely on claims of trespass to chattels to stop cyber-harassment. Not every unwanted e-mail from a former employee will result in a lawsuit. Employers must weigh the costs and benefits of going to court to enforce their rights in this area. Employers should also take proactive steps to defend themselves against cyber-harassment campaigns.

    First, employers can and should purchase Internet and e-mail filters that stop unwanted materials from entering their computer systems. Some of these programs do an excellent job of filtering e-mails.

    Second, if an employer decides that a former employee will receive severance payments, the company should insist on a clear non-disparagement agreement in the release obtained for the severance payment. In the non-disparagement clause, the employee should agree to not make any disparaging comments about the company or its employees. Further, the non-disparagement clause should clearly extend to all forms of communication, including e-mails, chat rooms, instant messaging and all other forms of electronic communication. A properly worded release can give the company the ability to sue to recover the severance paid if the employee begins a cyber-harassment campaign, and potentially stop the action.

    Third, the company should carefully monitor any actions taken or e-mails sent by the ex-employee to see if the person makes any false statements, either in an e-mail or elsewhere on the Internet, that could be the basis for a defamation claim.

    Finally, employers should remember the importance of disciplining and terminating employees with fairness and honesty. An employee who is given opportunities to improve her performance, a thoughtful and honest explanation of why she was not a good fit for the company, and assistance in transitioning is much less likely to resort to such extreme and destructive behavior. Human resources can play a critical role in preventing costly and time-consuming legal action.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.