Should Employers Ban Employee Text Messaging?
Posted by Molly DiBianca On November 11, 2009 In: Policies , Social Media in the Workplace
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.
Comments
Posted by: Yosie | November 11, 2009 8:15 PM
I blogged about the same issue: Textual harassment: A new liability concern? And how it can affect Canadian employers. Maybe the information could be of use to your readers. See http://blog.firstreference.com/2009/11/03/textual-harassment/
Posted by: Monica Wharton | November 12, 2009 7:06 PM
Is there a law currently in place for IM (instant messaging) done on computers in the workplace? It appears that this is also a huge problem that goes unchecked.
Posted by: Employers Banning text would break federal laws... | January 7, 2010 12:57 AM
Both sets of circumstances (Text Ban while driving and a possible text ban while walking) already are in direct violation to several existing federal laws. These state bans passed as laws are already rendered illegal due to not being in direct compliance to federal laws since voice communication via "Hands-Free" is allowed. This creates an inaccessible accommodations violation of federal laws for the 62 million people with disabilities that use text communication.
Such a ban on texting cannot be implemented without a total ban on voice communication because people with disabilities who use texting as an accessible accommodation in both personal and professional communication due to laws such as the ADA, Telecommunications Act of 1996, Telephone Act of 1934, etc.
Those who cannot use voice due to disability use text messaging, instant messaging, and emailing as their alternative accommodation.
Such bans were done in past history such as the Milan Conference of 1880 where they banned sign language and triggered the Eugenics War against Deaf and Hard of Hearing people were done. During the war, the hearing population purposefully separated Deaf and Hard of Hearing individuals from marrying each other in attempt to extinguish the disability. This is no different than Hitler who had six million Jews killed during World War II.
A national Class Action lawsuit against the US Government is in consideration due to current bans in 19 states (so far) that directly violate federal law. This is to attempt to prevent a second Eugenics War in our country.
Source: http://deafness.about.com/cs/featurearticles/a/milan1880.htm