E-Mailed Messages Don't Necessarily Qualify as Communication

thePoint
October 13, 2004

A recent federal court case in Boston suggests that merely distributing a policy change by e-mail doesn't 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, according to Workforce Management Online.

In Campbell v. General Dynamics Government Systems Corporation, 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's 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 wasn't 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 did not include the dispute-resolution policy, but contained hyperlinks to the policy and to the company's handbook, which were posted on its intranet.

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 and, therefore, couldn't be bound by it. 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's used for work or for personal reasons, most users of e-mail inevitably receive incredible volumes of messages. It's often hard to distinguish the important from the frivolous. It's 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."

The Campbell case raises an important issue and teaches an important lesson for HR professionals and other individuals responsible for disseminating workplace policies. It's 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 could require employees to confirm via e-mail that they have read the policy. It could also configure its computer system to monitor access to internal websites and to track employee access. Failure to take these steps could mean that a company can't hold employees to workplace policies because it's unable to demonstrate that the employee received and read the information.

Brian Lewis is an attorney with Hinckly, Allen, & Snyder (617-345-9000) in Boston, Massachusetts. This article was reprinted with permission from The Point for CU Research & Advice.