Time to Get the Message: How Employers Can Address the Influx of Text Messaging in the Workplace
We’ve all seen the headlines: relief organizations in Haiti raise millions of dollars by asking people to send small donations via text message; the Tiger Woods scandal ensues when his wife allegedly discovers inappropriate text messages on his cell phone; and Oprah Winfrey’s newest mission, “Don’t Tempt F8, That Text Can W8,” leads the effort to ban texting while driving.
Whether for good or bad, and whether we like it or not, texting has become commonplace. In fact, studies show that since 2008, American cell phone users are sending more text messages than they are making phone calls. Thus, it should come as no surprise that texting is also having a major impact in the workplace. Because of the increased use of texting in the workplace, employers can no longer turn a blind eye to this common practice and, instead, must become “textperts” in ways to protect themselves from potential liabilities created by employee texting. Below are some problems involving texting that are already popping up in the workplace, and some possible solutions your company may consider implementing:
1. Privacy Expectations of Employee Texting on Employer Devices
The Problem: The U.S. Supreme Court has recently agreed to review its first case (City of Ontario v. Quon) involving the privacy rights of an employee’s personal text messages and will essentially address the following question: What are the legal boundaries of an employee’s privacy in this interconnected, electronic–communication age, one in which thoughts and ideas that would have been spoken personally and privately in ages past are now instantly text messages to friends and family via hand-held computer-assisted electronic devices? The Quon case arose after the City’s police department inspected personal, sexually explicit text messages that one of its sergeants (Sgt. Quon) sent using a city-issued pager. Sgt. Quon challenged the City’s actions claiming that it violated his privacy rights. The Ninth Circuit ruled that, because the City’s general internet and e-mail policy did not specifically address text messages, and because the Lieutenant in charge of issuing the pagers stated that no one would review the text messages, Sgt. Quon had a reasonable expectation of privacy and that the City had violated those rights by inspecting his text messages. The City appealed, arguing that its well-established no-privacy policy could not be disregarded simply because a Lieutenant verbally announced otherwise and that it is not objectively reasonable to expect privacy in a message sent to or from someone’s workplace pager. So, as the Quon case illustrates, one problem for employers who wish to investigate an employee’s allegedly improper use of text messages is the fact that the employee may claim such actions violate his or her reasonable expectations of privacy and, therefore, are unlawful.
Possible Solutions: Until the Supreme Court provides further guidance on this issue, employers who issue cell phones, pagers or other devices with text messaging capabilities to employees should take two important steps to ensure that employees have no expectation of privacy when sending text messages using company-issued equipment. First, employers should revamp their policies to clearly and unambiguously inform employees that all employee communications, including e-mail and text messages, that are made using corporate resources, like pagers or cell phones, are not private and will be monitored by the employer. Second, employers need to instruct their managers and information technology personnel to not contradict written policy by representing to employees that certain communications are not and will not be reviewed. At a minimum, employers should revise their electronic use policy to include a simple statement that the formal policy cannot be modified absent a revised written policy.
The Problem: The Quon case underscores a common drain on employee productivity: texting during the workday. In the Quon case, the investigation revealed that Sgt. Quon was sending an average of thirty texts a day while on duty, only three of which were work-related. In another illustrative case, a female County Magistrate Judge in Indiana was recently disciplined for sending numerous personal text messages to a married male co-worker. In fact, she even texted photos of herself to the co-worker while conducting hearings in Juvenile Court.
Possible Solutions: While most employers have policies stating that employees should limit personal phone calls or personal e-mails during the workday, these policies are often silent about employees sending personal text messages during company time. With the increased use of text messages, employers should consider updating their policies to reflect that it is unacceptable for an employee to engage in personal text messaging during working hours.
The Problem: As discussed in the article that appears later in this newsletter, Sticks and Stones: Practical Suggestions for Preventing a Hostile Work Environment Based on Profane or Offensive Words, employers should be cognizant of the new phenomenon of “textual harassment” in the workplace and the possible liabilities an employer could face as a result.
Possible Solutions: Because of the increase of lawsuits involving offensive text messages, employers should revise harassment policies to inform employees that sending harassing text messages to coworkers is a violation of the policy. The concept of textual harassment, as well as real-life examples of such harassment, should also be specifically incorporated into any current training program that deals with harassment in the workplace.
The Problem: Another area where texting can cause employers headaches (and litigation) pertains to texting while driving. More and more case law is suggesting that an employer may be liable to a third party for an accident that occurs when one of its employees is texting while driving in the course of performing his or her job duties. For example, a young girl in Florida was killed by a driver who was using her cell phone. When phone records showed that the driver was communicating with a client when the accident occurred, the jury determined that the employer was liable to the victim’s family under a theory of vicarious liability for 2 million dollars!
Possible Solutions: Currently, 19 states and the District of Columbia ban text messaging while driving. Employers in these states must incorporate and enforce similar bans into their policies. Because other states have similar legislation pending (and because it is good risk management advice), employers operating in the other 31 states should also consider implementing and enforcing a written policy banning all texting and e-mailing, and possibly even cell phone use, while driving a company vehicle or otherwise conducting company business while driving. If an absolute ban is impracticable, employers should advise employees to limit their communications to only emergencies and/or pull over before accepting the call or reading the text. These tips should be incorporated into a written policy that employees review and acknowledge by signature before being permitted to operate a company vehicle.