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Texting not as innocent as it seems

All too often, employees think that their texting is personal, according to Christine Walters, J.D., SPHR, a consultant with FiveL Co. in Westminster, Md. But texts can resurface in employment lawsuits, so employees and managers should be trained to keep all of their texts as professional as other communications.

“Texting seems to have evolved in a world of its own with lexicons, acronyms (LOL, TTYL) and a whole new language that has not carried over to other forms of e-communication,” said Walters, author of "From Hello to Goodbye: Proactive Tips for Maintaining Positive Employee Relations" (SHRM, 2011). “The use of this slang seems to foster an overall sense of relaxed communications that may lend itself to more personal and less professional comments, questions and statements.”

Walters remarked that she has “seen issues arise in which an employee and manager may be friends or have a romantic relationship outside of work. They think their messages from their own phones and off work time are their own.” She noted that if a harassment charge is filed, the manager’s texts may be used as evidence of harassment. “On the flip side, the employee’s messages to the manager can also be used defensively by the employer to show that sexual, racial or other off-color comments/jokes were welcomed,” she added.

Walters pointed to a Feb. 1, 2012, lawsuit decision in which an employee had kept all the romantic texts that a male co-worker sent to her (Stevens v. Saint Elizabeth Medical Center Inc., U.S. District Court for Eastern Kentucky). In that case, a nurse and doctor had a consensual affair, including having sex at work. After they broke up, the doctor allegedly continued to pursue the nurse, sending romantic text messages and attempting to touch her.

The nurse was fired for disruptive work behavior and having sex on the premises. The doctor also was terminated for having sex at the office. She saved his text messages and they were cited in an affidavit. Although her harassment claim failed because the messages “clearly did not create an environment that a reasonable person would find objectively hostile,” the case demonstrates that texts may be saved and reappear in litigation.

“Training is needed on texting,” contends Ron Chapman, an attorney with Ogletree Deakins in Dallas. Texting might be harder to recover, and employees might assume that a company does not have access to them, but texts can be retrieved, he cautioned. Chapman recommended that text training be paired with anti-harassment training, where employees should be told: “Don’t do anything you would not do in front of your mother.”

Wage and hour implications

Texting might be relevant in situations other than harassment, Walters noted.

Suppose an employee is out on unpaid leave but texts a manager as early as 4:30 a.m. and as late as 9 p.m. The texts could raise a question as to whether those communications are time worked for which wages are due, she noted.

A manager might text an employee in the evening to be ready for a 9 a.m. meeting the next day. If the manager has an expectation that the worker should be monitoring his or her phone and come prepared for the meeting, the time the employee spends in reading and responding to that text might become time worked and compensable under federal and state wage and hour laws.

Walters said that “for several years now I have seen it become a more common practice for employer’s email policies to remind employees that delete does not mean delete -- messages may still be retrieved.” She added that, “Likewise, I have seen those policies and educational programs broadened to include [other] e-communications, not just email.”

 

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Allen Smith, J.D., is manager, workplace law content, for the Society for Human Resource Management.

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