Legal Commentary by Monte Vines

Cringeworthy Comments in Your Files?

© Piksel |
© Piksel |

I like that word—“cringeworthy.” It describes something so awkward or embarrassing that you cringe when you see it. That’s part of the fun when watching a TV show like Modern Family, which seems to specialize in moments like that. But when I’m working with a client to help them resolve a dispute, it’s not fun at all to find comments in the client’s file that make me cringe when I see them.

You can imagine some possibilities:

  • You have a customer who is particularly difficult to deal with. So your frustrated employees start to refer to him internally in sarcastic or derogatory ways.
  • You have an employee whose personal issues or problems are dragging down the productivity of others. So your other employees start to express their frustration by private comments between them that would be demeaning or insensitive or offensive to the troubled employee.
  • You have employees whose work is to collect delinquent accounts. After awhile they have heard so many hard-luck stories that they get jaded to them. And they come up with stereotyped names or phrases to refer to those customers by.

Your employees may not be rude, and might never say these things to the customers or other employees involved. They just make these comments privately and with others who would understand or sympathize with the frustration. To them it may be nothing more than a way to release their frustration, or a way for them to show support for one another. But those private or internal comments often find their way into notes to the file or in emails between your employees.

Comments like these in your files can cause a serious problem. Your internal records are not truly “private.” If your dispute with the difficult or delinquent customer, or your dispute with the employee who feels discriminated against, winds up in a lawsuit, they often have a right to obtain all of your records relating to them. And when they see that your records have comments about them that are derogatory or sarcastic, demeaning or offensive, or that ridicule their politics or their religion or make light of their situation, these records might become evidence in their lawsuit against you.

Comments like that in your records may seem innocent or understandable to your employees who share the same frustrations or work experiences, but they can be seen very differently by a judge or a jury or the agency investigating a discrimination complaint. They can make it appear that your company’s actions were motivated by a desire to harm rather than by legitimate business considerations. So why give a potential opponent something like that to work with?

Prevention is much better than trying to explain away the problematic comments. Train your employees, and yourself, to stay businesslike and professional in conducting your business dealings. Even when doing things that seem merely internal.

Making your business records a cringe-free zone would be well worth the effort.

[Update: I’m not suggesting that once a dispute arises you go through your records and “cleanse” them of comments like these. That would be improper and unwise–and perhaps a subject for another blog post. I’m suggesting that you prevent the problem altogether by training yourself and your employees to avoid making comments like that and instead stay businesslike and professional in conducting your business.]

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