Editor's note: This article first appeared in the May/June print issue of Food Manufacturing.
Employees of a typical food manufacturer send and receive thousands of emails every day. However, it can take only one bad email — whether from the present or the past — to bring down an entire company. In one informal message, an employee can unknowingly express an opinion on the company’s liability, falsely implicate the company in wrongful conduct or make an admission which binds the company to an unfavorable position. That email can sit on the company’s server and function as a potential “time bomb.”
Emails carry so much risk because, in recent years, they have become the evidence of choice in litigation. Lawyers are willing to search the haystack of emails for that one “smoking gun” needle to use as Exhibit A in any lawsuits. For that reason, food companies should focus on training their employees to “think twice and click once.” Employees must learn that their emails can be used against them and the company.
For example, a food scientist might discuss the potential harmful effects of a specific ingredient, but not mention that the ingredient is harmless as used in the company's product. The scientist may have assumed that the email recipient understood the full story, but the email could be used out of context.
Alternatively, a marketing employee might send a seemingly amusing or joking email about deceiving the public in a label or advertisement. That email could easily be turned against the company in court.
Do’s and Don’ts
Corporate management, with the assistance of legal counsel, should take the lead in educating employees that when they click on their keyboards, no matter how informal the situation, they must keep in mind:
- All emails may be read by an adversary one day
- The words used in an email may be taken out of context
- Any email can be used against the employee and the company
Food manufacturing companies should consider the following in trying to educate their employees properly:
- Disseminate an email policy to all employees
- Conduct online training programs
- Run seminars during which troublesome emails are reviewed
- Randomly audit emails and speak with employees who generate emails that could pose problems for them or the company
Regarding the last point, the company should advise employees that they have no expectation of privacy to their company emails, and that their messages may be monitored.
Keep it Simple
When educating employees, they should be advised to follow these rules:
1. Ask if you would want to read about that email in The New York Times. Try not to write anything that you would not want to see featured by the news media. For example, the company does not want to have the following email on its system:
To: Q. Cee
From: Mike Manager
Re: Product Contamination
I can’t believe we have not taken care of cleaning the conveyor belts. Once again, the Company has proven that it is penny wise and pound foolish. Of course, you know I love watching you get all wet cleaning the belt. But seriously, is this ever going to be addressed? Do we want our kids eating this stuff?
2. Send emails to as few people as possible. Too many employees send copies of emails to a host of other employees. The more employees who know about an email alleging, for example, a concern about a potential contaminant, the more people who can face charges for a failure to act, regardless of whether any action was necessary. Employees should be cautioned that they risk making every recipient a potential witness. Here all the cc’s are potential witnesses if an accident occurs:
To: Jean Yuss
From: I. Meanwell
cc: B. Zaro, K. Kreme, R. McDonald, T. Carvel
Had lunch at the factory today (ugh!) and noticed once again that those banana peels are on the floor. Someone is going to slip. Just hope it’s not me. ;)
Thought you should know.
3. Consider a phone call for sensitive issues. Avoid emails when a phone call or a meeting would be more appropriate. Employees should be cautioned to think before they commit a random thought to an email that can become a permanent record. For example:
To: U.R. Smart
From: I.M. Dumm
Re: Contamination Issue
I think I really screwed up. I forgot to review the plan for boiling the new product to make sure that it’s safe for processing. I guess this is just another of the many mistakes we’ve all made on this project. I’ll talk to the team about it, I guess.
4. Don’t render an opinion on company liability. Try to avoid expressing an opinion on liability unless the employee has been asked to do so. Words such as “dangerous,” and “defective” are powerful, and should not be used lightly. Employees should be instructed to not put on their “lawyer” hats if they do not work in legal roles. Furthermore, if an email is going to document a problem, the employee should be advised to note the steps that have been taken to resolve it. For example, employees should be told to be vigilant about health and safety, but avoid speculating about liability in an email:
Re: My 2 Cents
I’m sitting here at my kid’s soccer game and had a thought to pass along to you. I’m not a lawyer, but I am guessing that we are violating federal regulations by not reporting the dangerous contamination problem I think saw last week. Should I get measured for an orange jumpsuit?
Employees should make every effort to write accurately in emails. Emails are all too often written in a hurry. Employees should be urged to avoid speculation and to reflect before committing information to writing. Employees need to be reminded that an email written “off the top of one's head” can be turned into the “gospel” by an adversary in litigation. Similarly, emails should not be a vehicle for letting off steam.
Certainly, a company should have a quality control protocol and should pursue any performance-related issues. An employee, however, may be totally off-base in his or her comments, or may rush to judgment. The unfortunate company may never get a chance to clear up the email at trial.
The net-net for any food company is that investing in an effective email training program can pay huge dividends. As with any policy, it is important to communicate it to all employees, secure company-wide support and enforce it consistently across the board. By doing so, any food company can avoid its adversary from being armed with a lawsuit silver bullet.
About the author
Mr. Levine is a Co-Chair of the Litigation Department at Herrick, Feinstein LLP, with offices in New York and New Jersey. He concentrates in representing food and beverage manufacturers, and conducts seminars for companies on “safe writing” and the implications of social media.