Editor’s note: Daniel A. Kaufman and Charmaine M. Butler lawyers with the Michael Best Law Firm offering the following comments on why employers need a text-messaging policy.

“In the last decade, many employers have updated their discrimination, harassment and retaliation policies to cover issues involving email. The new challenge for employers in 2010 will be developing and implementing policies that address text messaging in the workplace. Text messaging can lead to several employment issues, including discrimination, harassment and retaliation claims.

“Employers increasingly face situations where employees send inappropriate messages to each other via text. The so-called “textual harassment” issue has become increasingly prevalent and can be more difficult for employers to address than other methods of harassment. First of all, it is more difficult for an employer to discover the problem unless someone complains, as opposed to harassing words or actions that can be observed by supervisors or other employees. Second, employees sometimes text messages that they would not consider saying in face-to-face conversation or even email, such as texting lewd photographs and requests for sexual favors. A supervisor who might never call an employee or send an email late at night or after a few drinks might send an inappropriate text message. Third, text messages leave behind an electronic record, making them easily traceable, which creates a growing source of liability for employers as workplace texting continues to proliferate.

“The permanent nature of an electronic record can, however, sometimes work in the employer’s favor. For example, in Enriquez v. U.S. Cellular Corp., Case No. 06 C 3135 (2008), an employee sued her employer for sexual harassment based on a text message she received from her supervisor. She claimed that the texts that contained images of cartoon characters engaging in sexual acts were offensive and degrading. The employer, however, was able to produce text messages that the employee had sent to other employees where she forwarded the images and stated that she did not find them offensive. This discovery led to summary judgment for the employer. Even though the employer prevailed in this case, the court emphasized the importance of implementing text messaging policies in the workplace to avoid harassment.

“Employers can help prevent textual harassment and defend against harassment claims involving text messaging by creating a specific text messaging policy, along with their discrimination, harassment and other policies. Employers should make it clear in their policies that harassment will not be tolerated and is unlawful however it is communicated, whether through text message, email or spoken word.

“Employers should take all complaints of textual harassment seriously and investigate them in accordance with their anti-harassment policy. Preliminarily, employers should consider whether the textual harassment occurred during work hours or using company property. Employers generally are not expected to be responsible for employees' off-duty or off-premises conduct, especially when text messages are completely unconnected to the workplace. However, even if the purported harassment is completely off-duty and sent with non-company property, employers should examine whether the conduct, or its effects, have affected the workplace, similar to an investigation of a complaint of off-duty harassment that later causes interference in an employee's working environment. Furthermore, even if the harassing texts were sent off-duty and off-premises, the victim might have received and viewed the offensive text messages during her work hours or on a company phone.

“Employers need to be wary of incurring liability for retaliation claims when they discipline an employee for texting co-workers about harassment. Text messaging is a quick and easy way for an employee to complain about offensive behavior to several co-workers at the same time. Employers face potential liability for disciplining an employee for complaining of harassment, even if the employee disseminates the complaint to many people via text messages. Employers should stress the importance of confidentiality in their text messaging policies to help prevent employees from spreading information about alleged harassment to employees who are not involved.

“The most important steps employers can take to meet the challenges of text messaging in the workplace and avoid liability is to adopt sound policies that specifically include text messaging, provide regular training on such policies and diligently enforce the policies.”

Source: Michael Best & Friedrich LLP