Construction Law in North Carolina: Effective communications

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Construction Law in NC
Melissa Brumback's Construction Law in North Carolina blog provides a wealth of useful insights -- whether or not you are in North Carolina
Construction Law in NC
Melissa Brumback’s Construction Law in North Carolina blog provides a wealth of useful insights — whether or not you are in North Carolina

Melissa Brumback‘s Construction Law in North Carolina won the Best Construction Blog competition in 2011. She continues her impressive blog with resources and insights relevant both within the state, and to wider markets.

Consider her reminder in a recent posting, Learn from SONY: Don’t use trash talk in your construction project emails! to be wary of what you say and do in your email and other communications.

Lessons in construction administration come from everywhere — including the SONY scandal.

In case you are a bear hibernating in a cave (in which case, go back to sleep!), you’ve heard about the SONY hacking that was apparently, but not definitively, done by North Korea due to their displeasure over the movie The Interview.  And, you may have found it amusing to read of the inner bickering at SONY, at lease until the threat of a national incident and the (at least temporary) yanking of the movie from its planned Christmas release.

Melissa Brumback
Melissa Brumback

Lost in all of the discussion about taste, censorship, security, and First Amendment rights, however, was a simple lesson for each of us.  Never put anything in writing that you wouldn’t want to see on the TMZ report, the Wall Street Journal, or the New York Times.  For example, don’t call one of the biggest stars in your studio (Angelina Jolie) a “minimally talented spoiled brat.”

I’ve written about this before, but this is a fine time to remind you that someday, someone will read your emails. And that someone will not be privy to your internal jokes, quirky sense of humor, or understand that you just had a bad day.  If you have to have those awkward conversations– have them in person, or at least on the phone.  Don’t play around with written communications.  Every email, text, tweet, Facebook post, letter, note, or diary entry can be discoverable in a lawsuit.

We’ve all done it.  Sent inappropriate emails. Vents. Laments. Stop. Endeavor to be boring rather than funny in all of your online accounts. You may be only laughing on the inside, but you’ll still have a job, respect, and knowledge that there are no hidden documents waiting to shame you at the stroke of a hacker’s keyboard. And, tell your employees to do the same.

I can’t say how much I agree with Melissa’s observations here — and the vital importance that brief emails can have in creating (or settling) messy legal situations.

Perhaps the clearest case is one of a former contractor who we dismissed for non-performance. Turns out, she was pregnant, and she decided to assert that she was effectively an employee and we were discriminating against her because of her pregnancy. In Canada, these cases can be really messy — it doesn’t cost the aggrieved individual a cent to file a human rights complaint, but the business faces extremely high legal bills and massive energy drains in resolving the matter. The result: something of an extortion gambit, where the business pays up to avoid problems.

I decided to see if we could find a solution that wouldn’t burn our budget so arranged for a brief meeting with the former contractor. It was just the two of us. We agreed that I would pay her a modest amount for a few months and she would be happy with the settlement.

I drew up a brief email outlining our understanding. My lawyer said: “You should have her sign a release document.” I said, “No, if I do that I will get her lawyer involved and I want to get this deal done before we go there.” So I kept it very informal. She agreed to the deal with a brief but clear “okay.” Then I went to my lawyer and said we can arrange for the release.

Not surprisingly, her lawyer immediately stormed back and said: “That deal is not good enough. You have to do better.” But we had the email agreement, which we forwarded to the lawyer and former contractor. That sealed the deal and saved a small fortune in litigation and severance costs.

Another lawyer provided me equally succinct advice — when you are discussing sensitive issues, don’t do it by email, use the phone; and that has consistently been my policy since then. I can’t say exactly how much trouble it has averted — because nothing has gone wrong, even when things were getting awkward. Even today, in communicating with my brother about something that doesn’t relate to my business but to his, I looked at the wording, thought about how a lawyer somewhere down the line might read it, and changed the message to make it totally neutral and safe.

You never know when the words may come to haunt you. So, if you haven’t already followed Melissa’s suggestions, take them seriously and be sure you and your employees know that every word in an email can live forever — and go places you don’t want it to go (and in some cases, the converse applies — strategic emails can elicit responses that can save your skin in potential litigation situations.)

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