Friday, January 21, 2011

A Pregnant Employee's "Secret" Emails Sinks Her Case

Consider the case of Gina Holmes, who sued her employer, Petrovich Development Company, asserting causes of action for sexual harassment, retaliation, wrongful termination, violation of privacy and intentional infliction of emotional distress.  (Holmes v. Petrovich Dev. Co., LLC 2011 DAR 671.)  Gina interviewed and was hired in June 2004.  In July 2004 she announced her pregnancy, her December 7th due date, and her intention to work until the due date, and take only six weeks of leave. 

The following month, the boss sent her an email discussing the need for qualified person to assist during her leave of absence.  Sh responded by stating she would be leaving about November 15th and possibly be gone four months, the maximum allowed in California. 

Understandably, the boss was confused and upset.  He asked Gina when she decided to leave earlier and be gone so much longer.  He felt that Gina was not honest with him.  Gina responded by explaining the difficulties she has had with pregnancies, and that she did not want to announce her pregnancy before she confirmed all was well -- also understandable. 

They appeared to settle the issue, with Gina expressing how much she enjoyed her job and wanted to stay, and the boss telling her he wanted her to stay.  However, later that day Gina sent an email to her lawyer complaining that she felt like an outcast and that the boss had forwarded her emails to others (with HR responsibilities) in the company.  She also set up a meeting with her lawyer.  After that meeting, Gina wrote another email to her boss telling him that she could not put the matter behind her and that she had no choice but to resign.  A few weeks later the lawyer filed a lawsuit on Gina's behalf. 

Gina lost the lawsuit and she appealed.  She claimed that the emails between she and her lawyer, made with the company computer, were protected by the attorney-client privilege and could not be used in the case.  The court disagreed with this claim.  The handbook notified employees that they do not have any right of privacy in the use of company computers, and that emails or other messages could be accessed by the company.  Gina waived any attorney-client privilege by communicating with her lawyer knowing that the communications could be reviewed by the company.  Such behavior is similar to consulting a lawyer in the employer's conference room, with the door wide open and speaking with a loud voice.  Gina's failure to communicate in confidence negated the attorney-client privilege. 

This is an important case for employers for a couple of reasons.  First, this case shows employers the importance of establishing policies and informing employees that their use of electronics, such as computers, can be monitored.  A password does not guarantee privacy.  The company can review anything an employee does on his/her computer. 

Another important lesson is for employers to watch what they say and do when an employee announces a pregnancy.  I have had the situation arise with multiple clients where an applicant is hired to fill a position just to announce, within weeks or even days, that she is pregnant and will need time off.  The law allows for this, whether or not it may be considered fair for an employer.  Address the issue of time off in an appropriate way.  If a substitute will be needed to fill in, try and determine when the leave might commence so you can take appropriate action to find and train the substitute. 

Will it be inconvenient to do this?  Yes.  Will it be more expensive?  Probably.  However, the bother and the cost is insignificant compared to a lawsuit.  Even if the employer wins, the employer spends a lot of time, money and energy to defend a lawsuit. 

Nevertheless, this is a great victory for employers.  A court has concluded that under the circumstances of this case, the employer's review and use of emails between the employee and her attorney were not privileged.  And the use of those emails greatly helped the employer prevail in this case. 

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