Thanks to new “electronic discovery” rules, e-mail records have emerged as key pieces of evidence in many employment lawsuits — often in employees’ favor. Here are some common e-mail mistakes by managers that get companies in serious trouble.

In a nutshell, “e-discovery” means that, in the event of a lawsuit, an employee’s attorney will be able to sift through your company’s e-mail system to look for any messages sent by management that will help the employee’s case.

Companies most often get in trouble when managers carelessly write back and forth about the employee involved, thinking no one will be able to read the e-mails.

Here are 10 common phrases they need to avoid, according to Elizabeth Charnock, CEO of Cataphora, a provider of e-discovery software:

1. “I could get in trouble for telling you this, but …”
2. “Delete this e-mail immediately.”
3. “I really shouldn’t put this in writing.”
4. “Don’t tell so-and-so” or “Don’t send this to so-and-so.”
5. “She/He/They will never find out.”
6. “We’re going to do this differently than normal.”
7. “I don’t think I’m supposed to know this, but …”
8. “I don’t want to discuss this through e-mail. Please give me a call.”
9. “Don’t ask. You don’t want to know.”
10. “Is this actually legal?”

The bottom line for managers: E-mail creates a permanent record. Sensitive topics like legal issues are usually best discussed in face-to-face meetings.

Even harmless conversations that contain those suspicious phrases can do a lot of damage to a company.

There’s a brand new type of lawsuit employees and their lawyers are filing against companies:

Some nonexempt employees are claiming they should be paid for the time they spend booting their computers up in the morning and logging off at the end of the day.

Many companies use electronic timeclock software that automatically clocks workers in when their computers are turned on. That means there could be time when people are at their desks but not clocked in. It may just be a few minutes a day, but the time adds up.

In the past year, employees have filed suits against several companies, including AT&T, UnitedHealth Group and Cigna Corp., claiming they’re missing out on 15-30 minutes of paid time every day because of the time it takes to boot up and log off.

A half-hour sounds like an exaggeration, but assuming the estimate is true, that equals 2.5 hours every week. If someone makes $15 an hour, that’s $37.50 a week and $150 a month the employee could be owed.

Is booting up ‘work’?

It’ll be up to the courts to decide whether waiting for the computers to turn on counts as work.

The companies say workers spend that time getting coffee or having cigarette breaks. But the employees say they’re performing actual work, like organizing materials, doing paperwork or checking their calendars.

Do the employees have a case? Both sides of the debate have some legal history to bolster their sides of the argument:

According to the Supreme Court, workers must be paid for pre- and post-work activities that are “integral and indispensable” to the employees’ duties — such as putting on and taking off protective equipment (Cite: IBP, Inc. v. Alvarez).

However, the Court also refused to overturn a similar suit in which the employees lost because the activities in dispute were “relatively effortless” and took a small enough amount of time to be considered “de minimis” under the Fair Labor Standards Act (Cite: Gormon v. The Consolidated Edison Corp.).

Depending on how the computer cases are decided, they could effect how many companies track hours for nonexempt employees. We’ll keep you posted on the rulings.

E-mails are never private and always permanent. That’s why it’s critical that HR periodically reminds managers to watch what they write.

E-mail slip-ups can often lead to lawsuits and create damaging evidence against the company. Here are seven big mistakes managers need to watch out for:

1. Venting frustrations about legal issues — It’s common for managers to be annoyed or concerned when they have to deal with employees on medical leave. But if they e-mail statements like, “I can’t believe she’s taking FMLA again,” it’s likely that message will end up as evidence in a courtroom.
2. Over-compensating for lack of documentation — In one recent court case, an employee was fired after he complained about age discrimination. After he filed a lawsuit, his ex-manager wrote an e-mail discussing performance problems and backdated it to look like it was sent before the termination. But the employee’s lawyers found out, and the company was hit with a whopping $46 million verdict for evidence tampering.
3. Discussing performance problems — Negative conversations are best done face-to-face — though about 17% of managers admit to using e-mail to avoid difficult discussions. E-mails can always be misinterpreted, and it’s easy for a manager to write something that may come back to haunt the company.
4. Using red flag keywords — Statements like, “Should we get a legal review?” or “We need an attorney” should never appear in an e-mail. To an employee or jury that ends up reading the message, it’ll look like the manager knew something was wrong and decided to do it anyway. Legal conversations are best held in person.
5. Not punishing employees for their e-mails — A lawsuit filed earlier this year accused the Secret Service of tolerating e-mail forwards with racist jokes. The lesson: Harassment and discrimination should never be condoned, but it’s especially dangerous when there’s a permanent electronic record of bias.
6. Making hasty promises — Managers should never use e-mail to discuss salaries, bonuses or promotions. If those decisions are explained in an e-mail and then later changed, that will cause serious problems.
   
7. Expecting nonexempt workers to check e-mail after hours — Nonexempt employees must be paid for any time they spend working — and that may include little things like catching up on e-mail while they’re away from the office. If managers make a habit of sending critical e-mails at night or on weekends, it might give employees the impression that they’re supposed to be working, too.

You can see the page here. According the homepage, “This website is being used to present evidence in an EEOC complaint, among other things.”

Also, the author says he’s heard from other employees who are interested in filing a joint lawsuit, and lists his own contact information for all the employment lawyers out there.

And the scariest part: There are several pages of articles detailing other complaints the ex-employee has with the company and some other examples of alleged misconduct.

This probably won’t become normal behavior for employees who file lawsuits, but these days, there are a number of ways current and former employees can air grievances and find an audience. With current employers, it’s possible to have a policy against mentioning the company online, but once someone quits or gets fired, there isn’t much to do.