Jon Gruden's Abrupt Resignation Serves as a Reminder for all Employers

October 21, 2021

The email scandal involving now-former Las Vegas Raiders head coach Jon Gruden offers an opportunity to remind both employers and employees that the “e” in email frequently stands for “evidence.”
 
A mere three years ago, the Raiders lured away Mr. Gruden from a reported $6.5 Million annual salary as an analyst with ESPN. The Raiders reportedly offered Mr. Gruden a $100 Million, 10-year deal to coach, and effectively become the face of, the Raiders franchise.
 
Enter the Washington Football Team’s discrimination and harassment investigation. According to published reports, in the years prior to Mr. Gruden’s hiring by the Raiders, Mr. Gruden sent several problematic messages to an executive with the Washington Football Team.

Mr. Gruden apparently sent offensive emails to that executive’s official WFT team email account. The emails were discovered as part of an investigation into the allegedly discriminatory employment practices the WFT. The discovery prompted the Raiders to ask for, and accept, Mr. Gruden’s resignation.
 
Though swift, and arguably stunning, Mr. Gruden’s fall is all too common in the world of corporate email. Experienced labor and employment lawyers frequently encounter scenarios involving company stars whom let down their guard in email or text message communication. For whatever reason, people tend to say things via text message and email as though they are having a private conversation.

These communications, when sent to or from company accounts or over company servers, are not private. Even “double-deleted” texts and emails can be recovered with little effort by a competent forensic examiner. Things long ago forgotten can be brought back to life with a simple sweep of a computer, tablet or phone.
 
What can you, as an employer, learn from the Gruden debacle (setting aside the obvious advice of don’t be an awful person who would say the things Gruden is alleged to have said in the emails)?
 
Have a written policy regarding use of computer and email
 
Employees need to know that everything they do on a company device or server is subject to your review. Every email sent to or from a company’s server has the potential to reflect either positively or negatively on the organization. We advise all of our clients to have a strong computer/device use policy that is given to all employees when they begin with the organization, and is periodically reviewed. Assert company ownership over all electronic communications and clarify that no email sent by or to an employee is “private” to the employee.
 
Practice what you preach
 
Too often we see examples of employers invoking a “do as I say, not as I do” approach when it comes to HR policies. Employers, be they owners or managers, need to follow the company establishes for all of its employees. Set the tone for appropriate written communication your team. Do not type or text anything about which you would be ashamed to have read to the public (or in court).
 
Limit Access to and Downloads from Certain Internet Sites
 
Employees should not download or disseminate anything using their work computer until they are certain that its owner has expressly permitted it to be downloaded.
 
Review and train
 
Periodically review your computer use, email, and social media guidelines with experienced legal counsel. Keep your employees informed of any changes or updates to your policies. Make yourself, as own owner or manager, available to answer questions your employees may have about acceptable use of the company’s electronic resources.  

B. Kevin Burke Jr. is an attorney with Gross Shuman, P.C. He focuses his practice on the litigation of contract disputes, labor and employment issues, intellectual property protection, and trade secret cases. He can be reached at 716.854.4300 ext. 292 or kburke@gross-shuman.com.