Depending on what you read, either Dorothy Parker or the daughter of President Teddy Roosevelt is credited with popularizing the expression, “If you don’t have anything nice to say, come sit by me.” It’s a clever redo of the rule “If you don’t have anything nice to say, don’t say anything at all,” but its wit diminishes if the person without anything nice to say works for your company.
I could fill this entire page with a list of recent examples of companies and organizations thrown into a PR nightmare because of comments made by an employee. In fact, several have likely already jumped to your mind. Because we live in an internet world, once these words are uttered—whether by post or by tweet, whether made from the office or written from the privacy of the employee’s own home on their own computer—they have implications for the law firm or company who employs the person. An employer will be judged by its response, or lack thereof, and both have practical and legal implications that must be evaluated. Unfortunately, once the words have been uttered, the law firm or company has precious little time to make decisions that could have long-range implications.
Making decisions about whether or how to react when an employee’s comments have drawn public attention necessarily involves looking at the legal implications of alternative actions. This means consulting with in-house and/or outside legal counsel, but the mere inclusion of legal counsel in communications does not necessarily render the communications privileged. So what’s an employer to do?
First: Who Needs to be Involved in Decision-Making
Many courts have concluded that when unnecessary people are involved in the communication, any privilege that might otherwise attach has been waived. This has generally been referred to as the “need to know” agents of the entity. United States v. Jones, 696 F.2d 1069, 1072 (4th 1982); Southern Guar. Ins. Co. v. Ash, 192 Ga.App. 24, 29, 383 S.E.2d 579 (1989).
When evaluating whether or how to respond to any event with both legal and business implications, consideration should be given to which people within the organization are included in the discussions. The bigger the group, the more suspect it may appear to any court who may later weigh whether the privilege has been waived. If a number of people need to be included in the discussion, it may be useful to chart out specifically why each person is in the “need to know” category. Exxon v. DNR, 859 So.2d 1096 (2003).
Second: Shut Off the Electronics
More often than not, the comments that need to be addressed are ones that were made via some form of electronic communication: email, Facebook, Twitter, blog or other electronic communication. If the communication happens to have been made in a more-traditional form, it likely becomes a problem following its broadcast through the electronic universe. In that context, it makes sense to stop the ESI (electronically stored information) trail and pick up the phone or meet in person to plan the response.
Third: Invest in the Investigation
In many circumstances, immediate reaction is not necessary, but even in the most exigent of situations, a company does not have to make a decision in an instant but instead can take an hour or more to formulate a plan. Immediate action to remove the offending comments from any and all corporate websites or social media is clearly appropriate, but when a company can order an employee to remove something posted on his or her personal social media account or blog can be less clear. Careful consideration needs to be given to whether the company has the right to assert control over the statements made on a personal account. This may require review of the company’s social media policy, training materials or programs given by the company on the use of social media and what, if anything, has been done in the past when employees posted something with which the employer disagrees. The first step should be to ask the employee to remove an offending statement, but further analysis must be taken before demanding that it be done.
Similarly, the company must evaluate the legal implications of disciplining or terminating an employee for statements made on personal social media accounts. Under certain circumstances, discipline or termination in response to posts on personal social media accounts can be considered retaliation for exercising free speech. Laborers’ International Union of North America, Local 91, 365 NLRB No. 28 (2017).
Fourth: Presenting the Response
All situations involving internet or media attention require determination of whether, when and how to make a public response. Should the response be a formal written statement to the media? Post on the company website or through social media? How much information should be revealed? Answering these questions requires balancing legal, business and marketing concerns, and quite often the decisions are made in consultation with outside consultants. Courts looking at whether these communications are privileged have considered two factors.
Under the “functional equivalent” test, communication with an outside consultant is privileged when the consultant is essentially performing the function an employee would perform for the company. Relying on Upjohn v. U.S., 449 U.S. 383 (1981), the test focuses on whether the advice is given for the purpose of enabling a lawyer to give sound and informed advice.
The other approach focuses on the source and nature of the public relations firm’s retention. Where the firm has been hired by legal counsel for the purpose of providing information to be used in rendering legal advice, communications with the PR firm have been found to be privileged.
Immediate and widespread publication of information is an unavoidable part of business today, and the legal implications of dealing with those communications are both complex and diverse. While it is vital to have a plan in place to deal with the unfavorable or improper comments made by employees, it is equally important to ensure that plan is implemented in a way that ensures privileged communications maintain their confidentiality, even if litigation ensues.
A partner at Womble Bond Dickinson, Elizabeth O’Neill defends corporate clients in complex cases across the country. She has also represented law firms and professionals in malpractice cases in various jurisdictions for more than 15 years.