A reported 4.1 billion text messages are sent each day in the U.S., according to CITA, the International Association for the Wireless Telecommunications Industry. The popularity of text messaging or “texting” has seen explosive growth in the past few years. But are employers really in touch with this tool and its potential legal risks?
One employer has. Alachua County, Florida, has banned County employees from sending text messages for County business. The prohibition was announced after County official became concerned that text messages constituted public records that are subject to a FOIA-type request. FOIA laws require public entities to produce official records when a proper request is made.
Textual harassment has gotten quite a bit of press lately, and for good reason. According to the National Conference of State Legislatures, 46 states, including Delaware, currently have an electronic harassment or “cyberstalking” law.
The Delaware law provides that a person is guilty of criminal harassment when, with the intent to harass, annoy, or alarm another, the person . . . communicates by telephone. . . or any other form of written or electronic communication in a manner which the person knows is likely to cause annoyance or alarm.
When an employer learns of a possible hostile environment, it must comply with fairly strict rules relating to how and how quickly to respond. Textual harassment adds another layer to the process because employers must determine whether any electronic evidence of harassment (or evidence that disproves harassment) exists on computers, laptops, and, now, cell phones.
Employer should consider whether their employees are using work (or personal) phones to send text messages about work during working time. If so, you are obligated to take active steps to preserve these messages once you have reason to believe there may be potential litigation. If you’re not in a position to do that, you may want to consider implementing a “no-texting” rule for all business-related correspondence.