WORKPLACE LAW - Texting While Working

Question:

Lately I’ve noticed that my employees spend way too much time texting when they should be working. Can you give me some guidance regarding text messaging in the workplace? I am not sure what I can and cannot do to prevent my employees from texting at work.

Answer:

Text messaging (or “texting”) has grown so quickly in popularity and has become so pervasive that it has become part of our workplace culture. Some recent statistics regarding text messaging demonstrate how incredibly popular it has become in the last several years:

  • More than 70% of wireless users (or more than 200 million Americans) have an SMS (or “short message service”) package for their mobile device that allows for short text messages to be sent from one device to another.
  • The use of text messaging increased by 107% in 2009.
  • Approximately 2.5 billion text messages are sent each day in the United States.
  • More text messages are now sent via cell phone than calls placed with those same phones.

Employers can adopt a policy prohibiting text messaging at work. If text messaging continues, you can discipline employees for violating the policy because, as you note, employees who are texting while at work are not working. Because of the prevalence of text messaging, even if you ban text messaging during work hours, you should put some guidelines in place that address texting in the workplace and require that your employees comply with them.

For instance, you should have a policy in place that prevents the sending, receiving, or displaying of messages or images (email, text, or otherwise) on personal mobile devices if those messages or images could be considered harassing, offensive, pornographic, or disruptive to other employees. Your policy should explain that “offensive” content includes anything sexual in nature, as well as anything that might offend someone on the basis of his/her race, gender, national origin, age, sexual orientation, religious or political beliefs, disability, or any other characteristic that is protected by state or federal law.

Employers can also face liability if their employees are sending sexually explicit messages or images from one mobile device to another. This practice is commonly referred to as “sexting,” and could form the basis for a sexual harassment claim if the conduct is taking place in the workplace. Employees should therefore know that discriminatory or harassing comments made through any type of electronic means are prohibited and will not be tolerated, and that such conduct may lead to termination of their employment. If your company provides employees with mobile devices, you should also advise your employees that any messages or images sent or received on such devices are company property and that the employer reserves the right to monitor the text messages and images. Therefore the employees do not have an expectation of privacy in such messages and images.

If your employees communicate with you or their supervisors via text message, your policy should address those communications. The policy should require that any communications regarding compensation or hours worked, medical or disability leaves or absences, and attendance should be made in a writing other than a text message (e.g., via letter or email) so that there is a clear record for your files.

In addition, if your employees drive in the course of performing their job, you should have a policy prohibiting writing, sending, or reading text-based communications on an electronic wireless communications device, such as a cell phone, while driving a motor vehicle. Statistics show that texting while driving is approximately six times more likely to result in an accident than driving while intoxicated, and that people who text while driving are 23% more likely to be in a car accident than other drivers.

Although texting is now an acceptable and frequent form of communication, employers are permitted to regulate this conduct at work. Prudent employers will adopt policies to define the acceptable limits of text messaging in the work place.
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