Seyfarth Synopsis: Given the issues workplace texting presents for employers, employers would be wise to make clear in their policies what method of communication employees may use in the workplace for business purposes. If texting is allowed or tolerated in the workplace, employers need to review their policies relating to employee communication and record retention to make sure texts, in additional to email, are covered.
Texting is becoming more common in the workplace. Most employees use company-owned or personal phones to communicate in the workplace to some degree, and with phones, comes texting. Even if email is the sanctioned form of communication in the workplace, employees will text. Some employers may not even be aware their employees are texting with each other or to what extent. Other employers may be aware and actually permit texting in the workplace or simply tolerate it because they feel they cannot prevent it from happening.
Yet, if employers allow employees to text in the workplace, they will need to think about how they will access, view and preserve employee texts in the same manner that they do with emails. Plaintiff-side lawyers in employment cases are beginning to demand that text messages be produced along with emails during discovery. If the texts are made from company phones, the basis for such a request would seem to be well-founded assuming the substance of the texts is relevant to the claims and defenses in the case. However, when the texts are sent or received on personal devices used by employees in the workplace, the issue becomes more complicated. In such cases, employers typically argue that they are not required to produce texts from their employees’ personal devices because such devices are not within the employer’s custody or control. But if employees are using personal devices at work pursuant to a Bring Your Own Device program, the argument that such devices are not under the employers’ custody or control is undercut. Often BYOD policies allow for the employers to take custody of the employee’s personal device for various legitimate business purposes, which would include responding to discovery requests in litigation.
Thus, employers must grapple with how they will fulfill their legal obligations with respect to workplace texts by ensuring they have the same ability to access, view and preserve employees texts that they do with employee emails. And this need will only grow more pressing as time goes on. Some commentators say that, given the strong preferences of Generation Y for texting, texting will replace email as the primary mode of communication in the workplace of the future. Thus, prudent employers will start thinking about this issue is now.
The difficulty with texting in the workplace is that — from the employer’s perspective — texting is offline. In workplaces in which email is the primary method of communication, employee emails are usually sent, received and stored on an email server that is maintained by the employer. With the right policies in place, employers have free reign to access, review and preserve employee emails stored on these servers. There are many legitimate reasons for which employers need to access and view employee communications. For example, the employer may be conducting a workplace investigation or responding to a subpoena or discovery requests in litigation. Employers may also have an affirmative obligation to preserve employee communications when they are in litigation or in connection with a governmental inquiry or as required by law.
However, employers do not have ready access to employee texts and are not in a position to preserve them. Unlike emails, texts typically reside on the phones on which they are sent and received. These phones may or may not belong to the employer, but in order to access and review workplace texts, the employer must first take possession of the phone on which the text resides. Not only is this a cumbersome process if several employees’ texts must be retrieved, but it may not be possible if the owner/custodian of the phone is not in the office or works remotely. Moreover, having to take physical custody of an employee’s phone rules out any kind of surreptitious review of texts, which could be important in an investigation of suspected wrongdoing.
Also, where texts reside only on the phones on which they are sent and received, it is much more difficult for the employer to ensure such texts are being preserved in those situations in which an employer has an affirmative duty to preserve such communications. Setting aside the fact that phones can be lost or damaged or suffer a malfunction that makes it impossible to retrieve the texts stored on them, in order for an employer to ensure texts are being preserved, the texts need to be backed up in some way. If employees are texting on company-owned phones, it is conceivable that the employer could implement a system for automatically backing up the texts. However, with the proliferation of Bring Your Own Device programs, employees are often using their own phones at work. Where employees are using their own personal devices in the workplace, the employer would have to require employees to back up their texts to a company-owned computer or server. Even with a protocol in place for backing up texts, an employer could never be sure all texts were being captured as it is possible for employees to delete texts from a phone before the backup occurs.
There will also certainly be privacy issues raised for employers when they access and view employee texts. Personal and work-related texts will inevitably be commingled, especially if the phone is a personal device. The good news for employers on this front is that texts appear to garner less privacy protection under applicable law than emails in the workplace. For example, under the federal Stored Communications Act, which prohibits unauthorized accessing of communications in electronic storage through a facility that provides an electronic communication service, courts have held that a cell phone is not “facility” and that texts are not in “electronic storage” for purposes of the statute, and therefore, the SCA’s prohibitions do not apply to accessing texts on a cell phone.
Given the issues workplace texting presents for employers, employers would be wise to make clear in their policies what method of communication employees may use in the workplace for business purposes. If texting is allowed or tolerated in the workplace, employers need to review their policies relating to employee communication and record retention to make sure texts, in additional to email, are covered. No one knows exactly what the workplace of the future will look like and how employees will communicate in it, but employers should look into that future now and start taking steps to prepare for it.