Can I take legal action against a former employee who bad-mouthed the company via e-mail?
BY Robert Hoffman
Human Resources mentor Robert Hoffman responds to the following question from an inc.com user: After an employee resigns, and you're clearing out the e-mail on his computer, you find that he has bad-mouthed you and the company to other people. He has even sent copies of internal correspondence to others critical of the company. Can my company take any legal action against this person? Can a memo about this behavior be included in his employee file?
Robert Hoffman's response:You mention several issues that we can address:
Do companies have a legal defense against employees who bad-mouth the company?
First, I recommend that you seek legal counsel to offer a professional analysis that takes into account the specific facts of your case. I am not offering a legal opinion, but the situation you describe may be legally actionable. The terminology that is usually given to describe this behavior is either slander (if spoken) or libel (if written, which includes electronic versions). The key factor in determining whether the company has been damaged is the veracity of the information being communicated. If the information is true, the law most likely has not been broken.
In my experience, the solution to this kind of issue is to develop a policy that defines how the company may be represented to outside parties. The policy should make clear that employees are prohibited from publicly communicating negative opinions about the organization. The policy should also outline the consequences of such behavior and the enforceability of the policy.
Can documentation of such an action be included in the employee's file?
Yes, you can and should note in the employee's file that certain behavior was observed. Many actions indicative of employee performance should be included in the file. I suggest that care should also be taken to record accomplishment of objectives, overall performance, and positive recognition, in addition to keeping track of inappropriate behaviors and poor performance.
How should companies address employees' use/abuse of e-mail?
Companies should have a written and well-communicated policy on the appropriate use of computers, e-mail, and the Internet. In the particular situation you have described, I believe that a clearly stated e-mail policy would have helped deter employees from abusing the system.