Gruntled Employees

Email and the environment

I, like you, get too much email. Just a few weeks ago, I got to the extreme of having 10,000 (an actual number, not an example of hyperbole) emails in my in box. Which is not useful. What is more, as the newer emails fell off the bottom of my mail-app window, it was as if they no longer really existed (I still had them, I just couldn't see them, and therefore probably wouldn't do anything about them). I can see why noted Stanford Law professor Lawrence Lessig declared "email bankruptcy" awhile back.

(In fact, I found a better solution at 43 Folders, the blog of lifehacker extraordinaire Merlin Mann. It's called the Inbox Zero method, and it totally rocks. Everything you need to know is here. The video of Merlin's lecture at Google alone is worth the price of admission. OK, admission is free, but you get my drift.)

Anyway, speaking of email, I'm starting to notice that more people are including in their email footer the following message:

Please consider the environment before printing this email.

(It's not usually in green like that. I just did it that way for ironic effect.) The thinking being that the pithy admonition will, as it spreads across the world like a virus, eventually spare a forest or two from being unnecessarily felled. The message has spawned many reactions in the blogosphere. Many are quaint — "My friend, who is soooo green, has this great little email signature ..." Like the guy cured polio or something. Some reactions are less admiring, and often more amusing; see Trying My Patience, for example. Freakonomics coauthor Stephen J. Dubner poked fun at the tagline when it was used in an email that was selling private-jet travel. Because that will help lessen your carbon footprint.

But I have to admit that when I first saw the tagline, I misunderstood its point. The email that carried the tag related to an employment-discrimination case I was working on, so I thought the author was saying, "Consider the office environment if you print it out because someone might read it." I was thinking litigation, not conservation. And while the environmentally sensitive message is a valid one (and we should all stop reflexively printing out emails that we're going to save on our hard drives), the litigationally sensitive message that I inferred is equally valid.

And really, the bigger message should be: "Please consider the office environment before you even send this email." Because 13 years of litigating employment cases have shown me that emails lose lawsuits. All the time. People write the stupidest things in their emails because they think they're having an informal electronic conversation with their buddies. But unlike a face-to-face colloquy, where the words evaporate after they're spoken, emails live forever. And lawyers can find them later. And lawyers will find them. And they will beat you with them.

Make sure you train your employees and managers about the dangers of email. Tell them not to say anything in an email that anyone will find offensive. Because you can't control what happens to your words after you hit "Send." Save the potentially offensive things for private, face-to-face conversations. Or, you know, maybe avoid the whole offensive bit in the first place.

Oh, and please consider the environment before printing this post.

Gruntled on MSNBC Live

On May 22, MSNBC Live did a story on whether parents in the workplace were getting preferential treatment over nonparents. The fine folks at MSNBC had been perusing Gruntled Employees, and invited me to appear and give the employers' perspective. We actually ended up doing two live segments. The first piece had me facing off with Kim Gandy, the president of the National Organization of Women. Here is the clip (it's 3:50 long), which is copyrighted by MSNBC:

 

Later that day, I went back on MSNBC Live to discuss the issue with Kimarie Rahill McDonald, a New Jersey family lawyer. In this piece (3:58 long), I noted the similarity between today's issues and a similar topic from a 35-year-old Mary Tyler Moore Show episode:

 

(Also copyrighted by MSNBC, and used here under the fair-use doctrine.) I thought MSNBC did a nice job with the topic, and both anchors directed the discussion well.

Note to aspiring TV personalities: it's a heck of a lot easier doing it the second time!

The right way to be a boss

Last week, I was blasting overwrought and overwritten employee handbooks. (See "The world's shortest employee handbook.") I called attention to the Alabama A&M University personnel manual and its bereavement-leave policy in particular. The bereavement policy is robotically impersonal. Imagine being a valued member of the A&M faculty or staff, losing a family member, and then having to parse this:

Staff members shall, upon request, be granted up to three (3) days annually of bereavement leave for the death of a parent, spouse, child, brother or sister, grand parents [sic], grand parents-in-law, grandchild, son or daughter-in-law, mother-in law, father-in-law, brother-in-law, sister-in-law, step children, children-in-law, aunts, uncles, nieces, nephews, and first and second cousins. Other relationships are excluded unless there is a guardian relationship. Such leave is non-accumulative, and the total amount of bereavement leave will not exceed three days within any fiscal year. If additional days of absences are necessary, employees may request sick or annual leave, after providing an explanation of extenuating circumstances.

Now compare this sterile handling of employee-family death to the following tale from Brian McGrory's column in last week's Boston Globe. McGrory writes about a man named Jack Pichnarcik, whose 16-year-old son Mark died of leukemia. McGrory then writes about how the man's boss, trucking-parts-company owner Brian Pomerleau, treated his employee:

When Mark went into the hospital last November, Pomerleau told Jack to go be with his son, however long it was, and rest assured he wouldn't miss a day of pay.

He slipped Jack a couple of thousand extra dollars here and there over the next few months.

On the eve of Mark's death, Pomerleau quietly picked out a cemetery plot and made all the funeral arrangements himself, then headed to Boston to tell the Pichnarciks that everything was ready and funded, no questions asked or money accepted.

To me, Pomerleau shrugged it off, saying, "Hey, I made a few extra dollars in my life, so it's always nice to help someone you know."

This is the right way to be a boss. If employers acted more like Brian Pomerleau than like the handbook drones of Alabama A&M, they would attract better talent, and their companies would be more successful. Corporate bean counters who obsess over whether a bereaved employee took a day too many or lost a relative too distant should rethink their careers and find work that keeps them away from people.

Brian McGrory's complete column, called "Final Say," is here. Its title refers to the column's being his last, as the Globe has named Brian its news editor. Congratulations, Brian, and keep up the fine work.

The world's shortest employee handbook

We've talked before about HR professionals' and lawyers' propensity to overwrite when it comes to employee policies. (See, for example, "A two-word corporate blogging policy.") We make a lot of money writing personnel manuals for clients. But a question we often ask is: "Do you really need one?" While it's understandable and appropriate for an employer to make sure that its employees know what the rules are, a comprehensive employee handbook with Hammurabiesque (admittedly, not a word you see often) edicts on employee conduct can cause more harm than good.

The most common downside to having a personnel handbook is the risk of unintentionally giving up management rights and creating inadvertent employee contracts (as opposed to "advertent" ones?). Caselaw abounds where companies have written handbooks setting out rules for employees to follow only to have a court conclude that the employer is also contractually obligated to follow the handbook. And many courts have held that the lawyerly disclaimer buried in the introduction ("Management reserves the right to blah blah blah ...") doesn't get the company off the hook.

Another problem with handbooks — this one cited less often — is the creation of an impersonal, rigid structure that encourages employees to "game the system." Employees are smart when it comes to getting what they want. If a policy creates a loophole that allows more time off if you call it "personal time" instead of "sick time," you will see a rise in personal-time usage. This is not my being cynical; this is my recognizing that employees, like all humans, are (often) rational actors.

Finally, a thick manual of dos and don'ts sends a message that you don't trust your employees, or that you consider them wayward children. (By the way, why do people think you pluralize the noun "do" with an apostrophe? You don't. Apostrophes make things possessive, not plural.) Some policies are important to spell out, like how vacation accrues. And some policies are legally mandated, like sexual-harassment policies (in many states). But too many policies are the result of HR and legal types hyperlegislating conduct in the workplace. For example, dress codes or bereavement policies that go on for more than a sentence or two. You're better off without this paternalistic nonsense.

For an example of policies run amok, check out the manual of Alabama Agricultural and Mechanical University. The thing's so long that the table of contents is a set of hyperlinks. Do not read this while driving or operating heavy machinery. Here is the bereavement policy:

Staff members shall, upon request, be granted up to three (3) days annually of bereavement leave for the death of a parent, spouse, child, brother or sister, grand parents [sic], grand parents-in-law, grandchild, son or daughter-in-law, mother-in law, father-in-law, brother-in-law, sister-in-law, step children, children-in-law, aunts, uncles, nieces, nephews, and first and second cousins. Other relationships are excluded unless there is a guardian relationship. Such leave is non-accumulative, and the total amount of bereavement leave will not exceed three days within any fiscal year. If additional days of absences are necessary, employees may request sick or annual leave, after providing an explanation of extenuating circumstances.

What about second cousins once removed? This is what an employee who just lost a loved one should be reading? This is the kind of stuff that gives HR and lawyers a bad name. (By the way, "grand parents" means mothers and fathers who are swell. I think they meant "grandparents.")

Now before my law partners lock me away, I should say that there are situations or workplaces that call for a comprehensive manual. And if a client really feels the need for a handbook, we'll prepare one that protects the client and conveys its wishes without all the silly stuff.

But for the strategic employer who views its workers as its most important asset and wants to promote an atmosphere of professionalism and trust, let me propose the world's shortest employee handbook:

"Respect others."

(Now, wait. Before you accuse me of breaking out the zither and the "Kumbayas," hear me out. As I've said many times before, our roles as HR professionals, employment lawyers, and managers all boil down to the notion of showing employees respect. It says here that disgruntled employees are just gruntled employees who have been dissed. (Convenient, huh?) Employees you don't treat with respect are the ones most likely to sue you (see the discussion on firing employees with "retained dignity"). And I'm not making these pronouncements based on a Pollyannaish view of the world. Instead, I'm making these observations based on 13 years of defending employers from lawsuits. End of self-defense bit.)

Think about it: what policies in your typical handbook can't be distilled into the two words "respect others"?

• Policies about harassment and discrimination and office romance are all about respecting coworkers.
• Policies about trade secrets and computer usage and even attendance are all about respecting the company.
• Policies about dealing with customers or answering the phone or about handling complaints are about respecting the customers.
• Even policies about drugs and alcohol are all about respecting yourself.

Employees who follow this Rule Number One (and Only) will be valuable members of your team. Employees who fail to respect others should no longer be, unless you feel they deserve another chance.

Two words. Think of how much paper you'll save.

I know I'm going to take some heat for this, especially from my own office ("Quit telling people not to hire us, you idiot!"). But I'd love to get a discussion going. Bring it on.

A two-word corporate blogging policy

OK. So your employees have their own blogs. At first, you thought it was cute. A passing fancy. This year's e-fad.

But now you've realized that the blogs are not going away. And what is more, people are reading them. Reading about your company.

You need to do something. You realize that banning the blogs will just make you and your company look bad. But you need some kind of policy, don't you, or who knows what your employees will write?

That clatter you hear is the sound of legal and HR departments around the world frantically typing up corporate blogging policies. Examples abound. Here are IBM's Blogging Guidelines, a pioneering effort. It's pretty good. Here is Sun's policy; it's very good. Hill & Knowlton's is also quite good. Debbie Weil's excellent The Corporate Blogging Book includes helpful resources and advice, as does her top-notch blog, BlogWrite for CEOs.

On the other hand, Harvard Law School's policy reads exactly how you'd expect Harvard Law School's to read. It actually starts off with an apology ("We don’t mean to turn you off from blogging by immediately inundating you with legalese, but we need to make clear our respective rights and responsibilities related to this service.") — then it inundates us with legalese:

By posting your Content using the Services, you are granting Harvard a non-exclusive, royalty-free, perpetual, and worldwide license to use your Content in connection with the operation of the Services, including, without limitation, the license rights to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Content, and/or to incorporate it into a collective work.

(Nothing like a 59-word sentence to inspire you.)

But before you go starting a Corporate Blog Policy Task Force and taking meetings with lawyers, consider what you're really trying to accomplish. You probably want to make sure your employee-bloggers aren't sharing company secrets. Duh. You also want to make sure your employees aren't dissing your customers, or each other. And you probably want to make sure that your workers aren't posting compromising pictures of American Idol contestants on the company blog.

How can you accomplish this without inundating the blogosphere with Harvardesque legalese? With this two-word corporate blogging policy:

"Be professional."

If your employee-bloggers are posting the secret-sauce recipe, bad-mouthing customers, or distributing NSFW (not safe for work) art, fire them. And if you're concerned that your employees won't understand what you mean by "be professional," then you have a management problem or an employee problem. Or both.

Mandatory arbitration: stupid employer trick

A growing number of employers are making employees sign agreements that require any disputes to be heard by an arbitrator instead of a court. (Usually the agreements say "any and all" disputes, even though once you say any, you've got all covered. Lawyers: "Why use one (1) word when you can use three (3)?" But I digress.)

The thinking behind mandatory arbitration is that it is faster and cheaper. The unspoken thinking behind it, especially for large employers, is that any given arbitrator is more likely to have future cases with the employer than with the particular employee, and the arbitrator wants the large employer to use him or her again in the future. I don't buy that, because it suggests that arbitrators will subvert a case to curry favor with a large employer. I believe most arbitrators are ethical, and would never do that.

But arbitration is not good for employers. (By the way, I'm only talking about employment arbitration — not labor arbitration involving unions, which is a whole 'nother kettle of fish.) And there are three reasons why:

1. The parties choose the arbitrator.
   But Jay, you say, this sounds like a good thing. It's not like you pick your judge in a court case. Isn't it good to have some control? You might think, and employers often do. But it's not. Here's why:
   
   An arbitrator only gets a case when both sides agree to choose that arbitrator. (Well, duh, you say.) The way it works is that the American Arbitration Association or whatever group you're using gives you a list of a dozen or more available arbitrators. The company's lawyer and the employee's lawyer then pick a few acceptable choices from the list. When both sides find one they agree on, bingo — you got yourself an arbitrator.
   
   And how does the lawyer choose? Based on his or her own experience with the arbitrators, the experience of friends and colleagues, and the arbitrators' general reputation. And now we come to the problem:
   
   If an arbitrator has a reputation as being more employee friendly than employer friendly, I'm not going to pick him or her. (Again: duh.) And the converse is true, too. So an arbitrator has a built-in self-interest to come down the middle — to rule in favor of management and employees in roughly equal proportions. And that's the problem, because employees don't normally win half of the cases filed. For example, at the Massachusetts Commission Against Discrimination, employees win probable cause — that is, they get to proceed with their cases —  only about five to fifteen percent of the time.
   
   If an arbitrator was known to come out in favor of the employee only five to fifteen percent of the time, do you think any plaintiff's lawyer would agree to pick that arbitrator?
   
   The only way to fix this problem is to remove the parties' ability to choose the arbitrator. Until that happens, avoid arbitration.
   
   
2. There are no rules of evidence or binding precedent.
   Some people incorrectly think that this streamlines the process, making an arbitration less complicated and expensive than a court case. But rules of evidence — while sometimes pesky and seemingly arcane — are designed to increase the chances that testimony and evidence reflect the truth. Hearsay rules, the bane of second-year law students and many litigators, were designed to weed out made-up testimony.
   
   And binding precedent — the notion that earlier cases with greater authority control the current case — means that the parties know the rules beforehand. Without needing to follow precedent, arbitrators are free to come up with their own rules. While arbitrators universally try to be fair, their rulings can sometimes be ... well ... arbitrary.
   
   
3. Arbitral rulings are nearly impossible to overturn.
   Winning an appeal in court is very difficult. But short of misconduct or flagrant bias on the part of an arbitrator, it is next to impossible to get a court to overturn the arbitrator's decision.
   
   Just last week, Ross Kerber of The Boston Globe reported on MassMutual's attempt to get a court to overturn an unfavorable arbitral ruling. The story reports that the arbitration panel  had concluded that ousted CEO Robert J. O'Connell had been unjustly terminated and that he was entitled to $50 million in severance benefits, even though it found that he had had affairs with two women (including the company's general counsel). The company sued in Suffolk Superior Court to have the panel's decision overturned. But the court declined, holding that there was "no evidence of any failings in the procedural aspects of the hearings." The court did not confirm that O'Connell should have won the arbitration; only that he did win.
   
   The story reported that the company planned to appeal further. Good luck with that.

Mandatory arbitration of employment might sound like a good idea to employers. It's not. If you want to save money on employment disputes, consider mediation — a much more valuable ADR (alternative dispute resolution) technique.

*   *   *   *   *
A bit of language trivia: The expression "a whole nother" (used above referring to the fish kettle) is an example of tmesis. It's like they have a name for everything.

How to Save HR — Step 3 — Avoid the knucklehead stuff

Quick recap: The introduction to the problem is here. The first step in saving HR— establishing a Talent Department run by the Chief Talent Officer — is here. The second step is to get rid of the nickel-and-dime stuff — the traditional, unimportant, uninspiring personnel administrivia.

Step Three is just as important: getting rid of the knucklehead stuff — the often-well-intentioned but inadvertently small-minded rules that accomplish nothing except giving HR a bad name.

An example, straight from the I-swear-I'm-not-making-this-up department:

A friend of mine just started a new job. With the holiday season around the corner, she was delighted to learn that the employer had an annual holiday party that was always a fun affair. Spouses were welcome. Even boyfriends and girlfriends. That is, if you had been dating for eight weeks. Otherwise, sorry. HR rules.

It's nice that the company wants to reward its employees with a little Festivus action at the end of the year. And it's even nicer to spend the extra dough to include the missus or mister at the fancy dinner. And it's further even nicer to extend that holiday cheer to the unmarried but reasonably committed. But you can just imagine the brow-furrowing that went on to decide where to draw the line. It might have gone something like this:

HR rulemaker: "We can't limit it to married couples. That could be discriminatory. What if the couple isn't married because they're gay? Or commitophobic?"

Other HR rulemaker (looking anguished): "But we can't just open the doors to a couple that just met yesterday! That wouldn't do."

"Good point. How about one months?"

"Too short. Could go either way. How about six months?"

"Two. They've probably met the parents by then."

"Sold!"

OK: we kid because we love. But there had to be some thought that went into this, and it led to the ridiculous eight-week rule at my friend's company. And this is part of the reason why HR often lacks the respect they otherwise deserve. Well-intentioned rules that end up being silly.

Have the party — great! Let the employees bring dates — fine. But stay out of the business of qualifying those dates. That's just knucklehead stuff.

Workplace romance: love affairs and lawsuits

The Boston Globe's Jason Touhey has a nice article on the pitfalls of office romance, both for employees and employers. Jason reports that anywhere from 40 to 60 percent of workers admit to having had a romantic relationship in the workplace at some point in their careers. Since many people frown on that behavior (and people often lie to survey takers), you can assume that the number is somewhat higher.

Jason also reports that a quarter of all employers ban or discourage office relationships, with penalties including counseling, reprimands, or even termination. But employers should not assume that having a policy is going to automatically protect them from problems:

Most employers realize, however, their seldom-read manuals cannot top one of the most elemental powers in nature.

"Employers can't pretend that people are going to completely separate their [love] lives and their workplace lives," said Jay Shepherd, principal at Shepherd Law Group, a Boston firm serving businesses with employee disputes. "You just need to be smart about it and keep your eyes open for problems."

Companies also don't like it when couples split up. Failed workplace relationships can lead to productivity problems, lawsuits, and harassment claims, Shepherd said.

(I couldn't have said it any better myself. By the way, I said "sex lives," not "[love] lives.")

Jason also notes that 80 percent of respondents agree that relationships between supervisors and subordinates cannot be tolerated. (Implicit in that statistic is that 20 percent of respondents either didn't understand the question or enjoy lawsuits.)

Policies are fine, but they are no substitute for good management. And good management is the best protection from the potential sexual-harassment lawsuits that can be part of the ugly aftermath of a failed workplace romance. (See the recent post on why sexual-harassment cases are so hard to defend.)

10 ways to protect your company's trade secrets

Your people are your most important asset. But your trade secrets are up near the top of the list, too.

Just what are trade secrets? They are the information that would damage your company if your competitors got a hold of it. What can steps can you take to protect them?

Here are 10 actions you can take to reduce the risk of trade-secret theft:

1. Keep secrets off your website.
   Common sense suggests that if something is on your corporate website, it can’t possibly be a trade secret. Yet we’ve seen companies try to argue that it is. For example, a company might claim that customer lists are confidential, despite their website trumpeting the names of their customers. If it’s really a secret, keep it that way.


2. Use password protection on your trade secrets.
   If secrets are going to be kept on your company’s computers, make sure your password protections are up to date. Have a strict password policy, and make sure everyone follows it. Once employees start sharing passwords, your secrets are at risk. And make sure employees don't write them down. (See this post about employees who do.)


3. Use a shredding service.
   Many secrets find their way onto paper and end up in employees’ wastebaskets or, even worse, recycling bins. Giving employees personal shredders is an improvement, if everyone uses them. A better solution is to engage a professional shredding service, along with a strict policy for using it.


4. Have a powerful email/internet/computer policy.
   Most trade secrets spend much of their lives in electronic forms, and smart-but-unethical employees can use today’s technologies to help these secrets find their way to your competitors. Have a strict digital policy that carefully spells out that the computers are company property, and that employees have no right or expectation of privacy in what appears on their screens and hard drives.


5. Keep secrets under lock and key.
   It’s basic common sense, but it’s amazing how many employers fail to lock up their trade secrets. If secrets are kept in file cabinets, make sure the drawers are locked when not being used. Install locks on office doors and desk drawers to protect trade secrets kept in employees’ offices. And keep track of who has the keys.


6. Have — and use — a company ID system.
   Larger companies have so many employees that it can be hard to keep track of who’s who. To prevent strangers from snooping around your offices, implement a company identification system. And make sure employees wear or carry their ID badges. A system that isn’t used consistently offers little protection.


7. Have a need-to-know policy.
   Don’t get in the habit of cc-ing everybody in the company. Limit information to people who have an actual need to know it. If trade secrets are distributed throughout the company without regard to who needs the information, then a court might conclude that they’re not really trade secrets.


8. Conduct exit interviews.
   When an employee leaves your company, this might be the last time to impress upon them the need to keep confidential business information confidential. Have a checklist of points to make during the interview, and get the employee's signature on an acknowledgment that it's not OK to distribute secret information. This makes it harder to feign ignorance after being caught distributing your secrets.


9. Review trade-secret concerns whenever a key employee is leaving.
   Whenever you find out that a key employee is leaving, you should examine the trade-secrets she was privy to and assess the risks of her disclosing them. Especially if she’s going to work for a competitor. Remind her of any noncompete or nondisclosure she’s bound by. And preserve the contents of her computer hard drive and email, just in case. (Don't just reassign her computer to her replacement!)


10. Have a trade-secret audit done.
    Your employment counsel should be able to provide you with a comprehensive review of your trade-secret inventory, procedures, and policies for a reasonable fixed fee. The end product of this audit should be an executive-level report that tracks your company’s trade secrets, including who knows what and what protections are being undertaken to safeguard them. If you don’t know whether your trade secrets are being protected, they probably aren’t. A trade-secret audit should pay for itself many times over in reducing both trade-secret theft and unsuccessful enforcement litigation.

"Why would I write my password down? It's just my birthday."

Think your company's secrets are safe? Think again.

One third of all employees write down their computer passwords, Reuters (via USA Today) reported last week. This from a study performed by Nucleus Research and KnowledgeStorm. The study found no correlation between the complexity of the password system and the likelihood that employees would write down their "secret" codes — a third of all employees would always jot down their passwords no matter how simple they were. The study concluded that employers serious about security should consider abandoning passwords in favor of other methods, such as biometrics.

No lawyer tricks for defending against sexual harassment

Sexual harassment is the hardest employee claim to defend against. Why? Because it's the claim most likely to make its way to a jury.

When we're defending our employer clients, we try to get most types of employee claims narrowed or dismissed using an arsenal of legal tactics.

Lawyer tricks, in jaded terms.

For example, say I'm defending a disability-discrimination claim. Here are the different arguments I can make to try to get the claim dismissed:

1. the employee's not actually disabled
2. her condition isn't serious enough to meet the disability threshold
3. she's not "otherwise qualified" to perform her job
4. she refuses to accept the reasonable accommodations my client's provided
5. the accommodations needed to allow her to do the essential functions of her job are not reasonable
6. she's already claimed elsewhere that she's totally disabled, meaning she can't work, period

As you can see, there are a number of arguments I can use in a legal motion to try to get the claim dismissed. They're not easy arguments — disability cases are very tricky — but they are arguments.

Sexual harassment is different. I have fewer arguments I can make. Once the employee clears the hurdle of showing that the conduct actually was sexual harassment — meaning that it was unwelcome sexual conduct at work — she's off to the races. The only remaining issues are questions of facts — "he said, she said." And questions of facts are decided at trial. Once a sexual-harassment case gets to trial, the employee has a solid chance of winning, and a probable six-figure payout if she does.

The smart employer has a serious antiharassment policy and regularly trains its employees and managers so they know what harassment is and how to prevent it. That's much more effective than lawyer tricks.

IM: "Instant Messaging" or "Incriminate Me (and my company)"?

In 12 years of litigating employment cases for companies, I've learned two axioms of written words:

1. If it's not written down, it didn't happen.
This is why we always tell managers and HR pros to document, document, document everything. (We always say it three times, like it's an incantation or something.) Judges, juries, and agencies tend to believe a witness who says, "I know I talked to her on that date, because I wrote it down here," and then hands over the supporting note. It's not that someone couldn't have written the self-supporting document after the fact; it's just that most people wouldn't do that.

But the second axiom of written words is almost the converse of the first:

2. If it is written down, the person you least want to read it probably will.
(This is related to the First Rule of Litigation, which says that the other side will always learn what you don't want them to learn.)

For years now, companies have been telling people not to send emails that might incriminate themselves or their employers. Even today, people are lulled by the casual nature of email, and they type things they would never set down in a letter or memorandum. Who's going to read it? they ask. The answer is: The person you least want to read it.

Employees who have awoken to the need for prudent emailing still act recklessly when it comes to instant messaging. They take comfort in the knowledge — no, really, just the belief — that most companies don't have the know-how or technology or desire to save IM messages. But just how correct is that belief? The Wall Street Journal's Amol Sharma and Jessica Vascellaro have an excellent article on how IMs are not as private as their senders believe.

The messages could be saved by the recipient. They could be mis-sent, or read by someone else. They could remain on the ISP's servers, the company's network, or the employee's hard drive — all subject to subpoena and discovery. With the Mark Foley scandal tearing up Washington and the H-P pretexting imbroglio roiling Silicon Valley, an employee would have to be stupid to put something incriminating in an IM and think that no one but the recipient will ever see it.

All employers need to have policies in place that tell employees:

• the company owns the computers

• there is no expectation of privacy for anything written on company computers

• they mustn't send any email or IM that they wouldn't want to appear on the front page of The New York Times.

Not having a policy like this is just IM — imprudent management.