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Stop: Back Away From The Text Message!

By: Faith L. Driscoll

Over the past several years, using text messages in the workplace has become mainstream.  Many employees, however, are under the misconception that texting is a private method of communication.  They think that text messages, in contrast to e-mails, are untraceable and are not archived.  A recent National Law Journal article described the situation:

Texting may seem to users as ephemeral — and hard to trace — as a phone conversation.  But the messages leave behind an electronic record, and for lawyers, those records are increasingly being used to bolster a variety of claims, particularly in the workplace.  For employers, that means a growing source of liability as business-related texting continues to proliferate.

In reality, texts are definitely traceable.  Similar to emails, texts may be printed on paper, retrieved from a device, or even obtained from the phone company. 

Texts are an informal method of communicating, making it more vulnerable to harassment, jokes and comments that cross the line, and other unprofessional conduct.  Inappropriate text messages have been the basis for claims of discrimination, retaliation and “textual” harassment.  Courts have allowed employees to testify about the content of texts and photos exchanged, even when the messages were no longer available as evidence.  As a result, employers should take steps to ensure the use of text messages is limited in the workplace and update company policies to make clear the rules apply all forms of electronic communication.

The most important steps employers can take to meet the challenges of text messaging in the workplace and to help avoid liability are to adopt sound text-messaging policies, provide regular training on them, and enforce policies diligently.  Employer policies should make it clear that any inappropriate conduct will not be tolerated and is unlawful however it is communicated—whether through text message, e-mail, spoken word, or other means.

Training is essential to bring your policies to life.  Explain your policies in real word terms and stress that employees must report any concerns they see, overhear, or learn about through the rumor mill.  Use scenarios that could actually happen: after hours flirting between a supervisor and subordinate, sending a meme that contains a racist joke in a team group text, or sending a scandalous text after a few drinks.  Educate rank-and-file workers by setting expectations and being clear about the rules.  Focus training for managers on issues such as how to deal with harassment complaints, the rules and guidelines for ‘friending’ employees on social web sites, and the duty to be vigilant in looking for transgressions and problems.

Employers must take all complaints seriously and investigate them in accordance with their policies prohibiting harassment, discrimination and retaliation.  Employers generally are not liable for employees' off-duty or off-premises conduct, especially when text messages are completely unconnected to the workplace.  However, even if the conduct is completely off-duty and sent with noncompany property, employers should examine whether the conduct, or its effects, have affected the workplace, similar to an investigation of a complaint of off-duty harassment that interferes with an employee's work environment.  Furthermore, even if harassing texts were sent off-duty and off-premises, the victim might have received and viewed the offensive text messages during her work hours or on a company phone.

What This Means for Employers

Take time to review internal policies to determine whether they are relevant and current.  Does the company specifically address contemporary communications, such as Tweets, blogs, and texts?  Policies should also be clear that employees have no expectation of privacy at work.  All messages sent between employees, whether on personal devices or business devices, are subject to the company’s policies prohibiting harassment, discrimination and retaliation, as well as subject to searches while on company property.    Contact Barsamian & Moody for help reviewing and updated your policies to ensure they reflect the modern workplace to reduce the risk of liability.

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 The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Barsamian & Moody at (559) 248-2360, for individual responses to questions or concerns regarding any given situation.


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