Etiquette of Workplace Texting
Communication through electronic mail and handwritten messages has now been replaced with the instantaneousness of texts. It is no secret that texting has become a common form of information spreading, both privately and publicly. Both employers and employees participate in texting. When looking at texting within the employee-employer dynamic, there are some clear hazards that employers face.
For instance, a common text etiquette is that both employees and employers should avoid texting any confidential or HIPAA protected information. This prevents the ability for any confidential information from getting leaked. Additionally, texts should be proofread, and spellchecked to avoid any misunderstandings between parties.
It is significant that employers are also aware that texting employees outside of work hours can often lead to employers having to pay the employees for their time. A common misconception is that when one’s supervisor texts them after hours or off their shifts, the time it takes to reply is unpaid. However, in accordance with the Fair Labor Standards Act (“FLSA”), employers are required to pay non-exempt employees for all time hours worked over 40 hours. This includes emailing, texting, and calling – so long as that communication is related to the employee’s work and requires the employee to perform work, whether that be writing up a document, looking over a document, or other work-related tasks. Although texting can be brief – if it entails additional work for the employee while they are not “clocked-in,” that work may be compensable.
Although there is no bright line minimum time rule – generally, courts have concluded that when a call or text leads to the employee performing work that takes longer than 10 minutes, that work can become paid. Hence, having clear written policies in employment handbooks regarding overtime compensation and communications between employers and employees outside of the workplace, clears up any misunderstanding between paid and unpaid work.
Privacy Issues in Litigation
Privacy concerns also arise from employer access to private texts, and courts grapple with the legality of employer access during litigation. Employees typically argue that personal devices are not within the employer’s control and hence they are not required to produce texts. However, if the employer has a “Bring Your Own Device (“BYOD”) program in place, that argument is undercut since BYOD policies grant employers the ability to have access to employee’s personal devices for a variety of legitimate business purposes, including notably, discovery requests in litigation.
Although there are no one-size-fits-all policies about texting and personal device use, it is essential that employers have an effective and clear BYOD policy in place so that both the employer and the employee know where the threshold of privacy lies. As employees increasingly use their personal phones at work, it is more important than ever that employers provide clear notice of such BYOD policy and enforce the policy uniformly to limit any legal issues if they ever arise.
Preservation of Texts – When Can They be Discoverable?
If the need arises, the discovery process in litigation allows both parties to gather information in preparation for trial. In some instances, parties can request certain evidence that includes communications via texts. There is no hard and fast rule that applies equally across the board, but some courts have concluded that texts can be brought in as evidence, so long as they are relevant, not overly prejudicial, and most importantly authenticated.
Authentication is where some complications can arise. Texts can be faked or manipulated to an untrained eye, but most text messages sent through iMessage, or other messaging applications have the ability to be extracted through technology to confirm their authenticity. Although there is much scrutiny regarding texts as admissible evidence in court, it is important to remember and be cautious that what one writes and what one sends may be used as proof one day.
Additionally, the Federal Trade Commission and Department of Justice recently warned companies to maintain their Slack, Microsoft Teams, or Signal chat histories in case they face potential civil penalties and criminal obstruction charges. Employers have a legal responsibility to preserve documents when involved in government investigations and as workplaces continue to adapt to evolving technology, organizations should remain vigilant on their document preservation obligations – including digital communications.
Attorney-Client Privilege Issues and Employment
Undoubtedly, communication through texting has also permeated different relationship dynamics, including communications between lawyers and clients. Casual text communications bare no privilege, but the attorney-client privilege protects certain confidential communications between lawyers and their clients, and such communications extend far beyond oral conversations. The attorney-client privilege encompasses emails and even text messages but they must meet a certain criterion.
If the text messages reflect a client reaching out to their attorney for legal advice or in reference to a legal matter they are involved in, those texts are protected under the attorney-client privilege. For clarity, it is best that attorneys label communications with clear wording stating “privileged and confidential” or “attorney-client communication” to limit any inadvertent issues of discovery of such information.
Employer Take-Away
Texting continues to be in certain circumstances a quick method of communication for employees and employers alike. With specific policies in handbooks that address employer’s expectations about privacy, as well as employee’s concerns on privacy, texting in the workplace can be regulated.