e-Mail Job Termination Notices

Have a Protocol

Terminating employees properly is necessary to avoid multi-million dollar verdicts against employers. As communication technology has advanced, so have the methods of giving employees termination notices. In addition to face-to-face verbal communication of termination, employers use phone, phone-mail messages, traditional mail and, most recently, e-mail.

Once the decision to terminate an employee has been made, a written notice of that decision should be delivered to the employee. That notice should state the reasons for the discharge, to minimize post-discharge disputes and to assist the employer in the event of litigation. A proper discharge communication is also a good method of informing the employee of his or her rights, such as for continuing health care, as required by the Consolidated Omnibus Budget Reconciliation Act (COBRA).

Tort actions exist that allow employment-at-will workers to recover for inappropriate discharge. Abusive discharge and intentional infliction of emotional distress are two tort actions, for instance, that might be applicable to an inappropriate use of e-mail to give an employee notice of his or her dismissal. But the type of conduct necessary to support a claim of abusive discharge will not inevitably sustain a claim for intentional infliction of emotional distress.

Abusive discharge is by and large based on behavior in which the employer is motivated by a specific intent to cause harm to the employee or where a clear mandate of public policy is violated by the discharge. To prevail, a plaintiff-employee must connect the use of e-mail termination with contravention of public policy, such as a breach of fair dealing. This threshold is difficult to cross and, consequently, a claim of abusive discharge, when solely related to an electronic discharge notice, is unlikely to prevail.

More likely, a court will allow at-will employees to sue their employers for intentional infliction of emotional distress on the grounds that the use of an e-mail to communicate the termination is shocking and outrageous conduct. In such an instance, a plaintiff-employee may recover for emotional distress caused intentionally by the defendant-employer.

Causes of Action, Causes for Caution

The elements of a cause of action for the intentional infliction of emotional distress are:

• An extreme and outrageous act by the defendant;
• An intent by the defendant to cause severe emotional distress;
• Severe emotional distress in the plaintiff; and
• A causal relationship between the plaintiff's emotional distress and the defendant's conduct.

To prevail, the plaintiff-employee must show that the use of e-mail to give notice of job termination was outrageous and beyond all reasonable bounds of community decorum. Each case must be determined with respect to its specific facts, but some courts have extended the theory to cover reckless conduct (see, Bodewig v. K-Mart, Inc., 635 P.2d 657 (1981), where the employer's conduct was reckless and beyond that which the community finds acceptable).

To establish the tort of intentional infliction of emotional distress, there must be more than bad faith. Although the tort of intentional infliction of emotional distress is a well-established theory of recovery and is not unique to the employment setting, courts are indisposed to sustain such a claim unless the conduct is despicable. For example, the court in Terry v. Pioneer Press, Inc., 947 P.2d 273 (1997) stated that if an employee's mental distress is caused solely by his discharge, and if the discharge was permitted in his contract, then the employer has a complete defense, even if the employer is aware that the discharge will cause emotional distress.

To prevail in an action associated with intentional infliction of emotional distress, a plaintiff-employee must show than the use of an e-mail termination notice was more than merely humiliating (see, Am. Road Serv. Co. v. Inmon, 394 So. 2d 361 (1980))' or malicious (see, Rawson v. Sears, Roebuck & Co., 530 F. Supp. 776, (1982))'. Rather, to prevail, a plaintiff-employee must show that the use of an e-mail termination notice was outrageous to support a cause of action for intentional infliction of emotional distress.

To mitigate the potential for an intentional infliction of emotional distress claim, an employer contemplating the use of electronic termination notices can prepare the employees and offer services to mitigate the impact of the use of such electronic notices. For example, Radio Shack officials had told employees in a series of meetings that layoff notices would be delivered electronically. Radio Shack informed employees of its intended use of e-mail to give notice of job terminations, as well as offering follow-up meetings for its laid-off employees. The firm announced that electronic notification was quicker and allowed more privacy than breaking the news in person.

More Trouble Might Spark

The use of e-mail termination notices might also give rise to other legal difficulties. In particular, an e-mail termination-notification process may result in additional post-termination liability for the employer, as compared to traditional on-site notification processes. On-site termination notices allow employers an opportunity to immediately exchange severance checks for litigation releases and to immediately secure company assets such as company-issued Blackberrys, laptops and cell phones.

Also, the Internet in general and e-mail communications in particular are rarely deemed to be either private or secure. Normally, Internet messages are sent through a vast system of routers and servers. Some Internet communications travel across the country, even when the e-mail sender and recipient are in the same building. At various points along this path, e-mail messages are stored, and the contents of private conversations and business transactions can be retrieved, read and abused. In addition, e-mail messages are habitually stored by third parties on backup tapes that are kept for years.

Consequently, the use of an e-mail to communicate particularly damaging information related to a job-termination notice could bring a defamation claim under certain circumstances, in light of the fact that Internet use has been equated to publishing.

Employers that use e-mail termination notices might also reduce liability associated with e-mail distribution, including negligence and privacy protection failure, by encasing private information in attachments to e-mails rather than putting such information in the body of the e-mail. When attachments are used to provide Internet security, the text of the e-mail (to which the attachment is appended) characteristically contains a privacy notice similar to a fax cover sheet.

A typical notice might state:

The attachment associated with this e-mail is intended for the party to whom this e-mail is addressed. It contains confidential information. If you have received this e-mail, please delete the e-mail and the associated attachment immediately.

For additional protection, employers that use e-mail termination notices should consider using password-protected attachments. The notice might state that the employee should use his or her employee number or Social Security Number as the password.

Traditionally, job-termination notices took the form of a pink slip of paper that employees found in their mailbox or in the envelope carrying their paycheck.

Recently, however, tech retailer Radio Shack used e-mails to give more than 400 employees notice of their involuntary separation from the firm. That move probably wasn't the use of technology many in the e-commerce, or the bricks-and-mortar, world envisioned for the business sector.

The novel use of Internet communication to give employment-termination notice has been called outrageous and, if so, may give rise to legal difficulties for an employer. Such difficulties might be mitigated through use of prior and subsequent communications between the employer and the employee.

Have a Protocol

Terminating employees properly is necessary to avoid multi-million dollar verdicts against employers. As communication technology has advanced, so have the methods of giving employees termination notices. In addition to face-to-face verbal communication of termination, employers use phone, phone-mail messages, traditional mail and, most recently, e-mail.

Once the decision to terminate an employee has been made, a written notice of that decision should be delivered to the employee. That notice should state the reasons for the discharge, to minimize post-discharge disputes and to assist the employer in the event of litigation. A proper discharge communication is also a good method of informing the employee of his or her rights, such as for continuing health care, as required by the Consolidated Omnibus Budget Reconciliation Act (COBRA).

Tort actions exist that allow employment-at-will workers to recover for inappropriate discharge. Abusive discharge and intentional infliction of emotional distress are two tort actions, for instance, that might be applicable to an inappropriate use of e-mail to give an employee notice of his or her dismissal. But the type of conduct necessary to support a claim of abusive discharge will not inevitably sustain a claim for intentional infliction of emotional distress.

Abusive discharge is by and large based on behavior in which the employer is motivated by a specific intent to cause harm to the employee or where a clear mandate of public policy is violated by the discharge. To prevail, a plaintiff-employee must connect the use of e-mail termination with contravention of public policy, such as a breach of fair dealing. This threshold is difficult to cross and, consequently, a claim of abusive discharge, when solely related to an electronic discharge notice, is unlikely to prevail.

More likely, a court will allow at-will employees to sue their employers for intentional infliction of emotional distress on the grounds that the use of an e-mail to communicate the termination is shocking and outrageous conduct. In such an instance, a plaintiff-employee may recover for emotional distress caused intentionally by the defendant-employer.

Causes of Action, Causes for Caution

The elements of a cause of action for the intentional infliction of emotional distress are:

• An extreme and outrageous act by the defendant;
• An intent by the defendant to cause severe emotional distress;
• Severe emotional distress in the plaintiff; and
• A causal relationship between the plaintiff's emotional distress and the defendant's conduct.

To prevail, the plaintiff-employee must show that the use of e-mail to give notice of job termination was outrageous and beyond all reasonable bounds of community decorum. Each case must be determined with respect to its specific facts, but some courts have extended the theory to cover reckless conduct ( see, Bodewig v. K-Mart, Inc. , 635 P.2d 657 (1981), where the employer's conduct was reckless and beyond that which the community finds acceptable).

To establish the tort of intentional infliction of emotional distress, there must be more than bad faith. Although the tort of intentional infliction of emotional distress is a well-established theory of recovery and is not unique to the employment setting, courts are indisposed to sustain such a claim unless the conduct is despicable. For example, the court in Terry v. Pioneer Press, Inc. , 947 P.2d 273 (1997) stated that if an employee's mental distress is caused solely by his discharge, and if the discharge was permitted in his contract, then the employer has a complete defense, even if the employer is aware that the discharge will cause emotional distress.

To prevail in an action associated with intentional infliction of emotional distress, a plaintiff-employee must show than the use of an e-mail termination notice was more than merely humiliating ( see, Am. Road Serv. Co. v. Inmon , 394 So. 2d 361 (1980))' or malicious ( see, Rawson v. Sears, Roebuck & Co. , 530 F. Supp. 776, (1982))'. Rather, to prevail, a plaintiff-employee must show that the use of an e-mail termination notice was outrageous to support a cause of action for intentional infliction of emotional distress.

To mitigate the potential for an intentional infliction of emotional distress claim, an employer contemplating the use of electronic termination notices can prepare the employees and offer services to mitigate the impact of the use of such electronic notices. For example, Radio Shack officials had told employees in a series of meetings that layoff notices would be delivered electronically. Radio Shack informed employees of its intended use of e-mail to give notice of job terminations, as well as offering follow-up meetings for its laid-off employees. The firm announced that electronic notification was quicker and allowed more privacy than breaking the news in person.

More Trouble Might Spark

The use of e-mail termination notices might also give rise to other legal difficulties. In particular, an e-mail termination-notification process may result in additional post-termination liability for the employer, as compared to traditional on-site notification processes. On-site termination notices allow employers an opportunity to immediately exchange severance checks for litigation releases and to immediately secure company assets such as company-issued Blackberrys, laptops and cell phones.

Also, the Internet in general and e-mail communications in particular are rarely deemed to be either private or secure. Normally, Internet messages are sent through a vast system of routers and servers. Some Internet communications travel across the country, even when the e-mail sender and recipient are in the same building. At various points along this path, e-mail messages are stored, and the contents of private conversations and business transactions can be retrieved, read and abused. In addition, e-mail messages are habitually stored by third parties on backup tapes that are kept for years.

Consequently, the use of an e-mail to communicate particularly damaging information related to a job-termination notice could bring a defamation claim under certain circumstances, in light of the fact that Internet use has been equated to publishing.

Employers that use e-mail termination notices might also reduce liability associated with e-mail distribution, including negligence and privacy protection failure, by encasing private information in attachments to e-mails rather than putting such information in the body of the e-mail. When attachments are used to provide Internet security, the text of the e-mail (to which the attachment is appended) characteristically contains a privacy notice similar to a fax cover sheet.

A typical notice might state:

The attachment associated with this e-mail is intended for the party to whom this e-mail is addressed. It contains confidential information. If you have received this e-mail, please delete the e-mail and the associated attachment immediately.

For additional protection, employers that use e-mail termination notices should consider using password-protected attachments. The notice might state that the employee should use his or her employee number or Social Security Number as the password.