Inadvertent Legal Consequences Text Messages Can Cause Headaches for Human Resources

"TTYL," as every 14 year old will tell you, means "talk to you later" in the world of texting. Modern technology now allows people to communicate in a multitude of ways that were not available a mere 10 years ago. The communications are often short, if not abbreviated into an almost unintelligible code, and are written in an informal style most people would not use in a business letter. As an employment lawyer, however, I’m finding that these alternate communication methods (particularly texting) are improperly finding their way into human resource departments in the corporate world and causing potential legal risks for the companies when they are used on the job as they might be used in a social context.

The problem is two-fold. First, these technological communication methods lend themselves to incredibly informal messages that may come back to haunt the employer at some point in the future. Second, it may be difficult to track and maintain records for some of these technologies to demonstrate that these communications via texting (and often vital, legally necessary communications) even occurred.

Take, for instance, the manager who recently told me that she was texting an employee from her phone to the employee’s phone about why the employee was absent from work and when the employee was going to return. Similar to a phone call, there is no immediate record of these communications (and, certainly a manager could call an employee to find out why he or she is absent from work). However, texting raises a host of other issues not present by phone calls.

  • Since there is generally no record of the call, the manager will often make a note to file, or "note to self" of the call having been placed.
  • If no record was made, and proof is later needed that the call was made and when, the call was likely made on the company’s phone and the company can (easily or not so easily) obtain records of calls made on the company equipment.
  • Since the manager can "always retrieve the text from the phone," generally no such written notation is kept of a text sent. When the manager (and his or her phone), leaves the company, there goes the ability to easily recreate what happened; and obtaining a former employee’s text records can be a headache.
  • Additionally, unlike simple phone messages and conversations that are not recoverable unless expressly recorded, text messages can be recovered (even if you need to jump through various hoops to do so). However, when recovered, the texts are often in such an informal format (including a complete disregard for spelling and grammar, putting aside the various abbreviations and tendencies to make jokes or inappropriate comments), as to cause potential embarrassment to the sender and the company should that text become Exhibit A at a trial.
  • Moreover, a responsive text message often does not retain the original text message, making it potentially incomprehensible down the road since it is unclear what is being said. The string cannot be easily recreated.
  • And, lastly, given the informality of a text message (and the speed with which they are sent), text messages often fail to include those additional sentences us employment lawyers love to see thrown into business letters (or even formal e-mails) to employees that can provide additional layers of protection for the company.

The lesson is simple. Human resources and other managers should keep workplace communications strictly professional and without informalities. They should also stay away from methods that will be difficult to document should the situation under discussion become part of a lawsuit. In the end, you will never know if a communication in jest, slightly off-color or ambiguous, in part, because of abbreviations, will become a piece of evidence against your company in a future lawsuit until it happens. When it comes to communications at work with legal implications, don’t text.