As technology advances, employers and employees alike are finding an increasingly blurred line between work life and home life. This often means that work time spills into personal time and vice versa. Nowhere is this more prevalent than the fact that many employees use the same phones both at work and at home—raising a whole new spectrum of questions related to paying for extra hours worked as well as questions of employee rights and privacy considerations.
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One example that can be particularly difficult to deal with is the fact that employees may be sending personal text messages and e-mails from the same devices used for work. Where can employers draw the line in terms of what is and is not allowed on a company-provided device? And do the answers change when the company utilizes a “bring your own device” (BYOD) policy—allowing employees to use their own mobile phone for work purposes?
These are all complex issues to tackle. One in particular—the idea that employee text messages may not be private and could actually be sexual in nature—is what we’re focusing on here.
Employees May Be Sending Personal or Sexual Texts (Sexting): Why HR should care
You may be reading this and wondering what the big deal is. After all, many phone packages today come with unlimited data and texting, and many employer policies allow personal use of company devices within reason, so what the real issue here?
There are a few reasons why this could be a problem for the employer. Here are some examples:
- Text messages are one form of communication that can be used for sexual harassment. This could get employers into trouble if it should have known about sexual harassment occurring at work. This is especially problematic for employers since there is less opportunity to monitor text messages, unlike, for example, company e-mail. If an employer takes steps to reasonably keep sexual harassment out of the workplace, such as training and creating antiharassment policies, the employer may have a defense in some cases. But if the employer knew or should have known about the situation and did not take appropriate action, the employer will be liable.
- Employees may have an expectation of privacy, especially if the workplace uses a BYOD policy in which the employee has furnished his or her own cell phone for work use. It may seem obvious that sexting at work would be unprofessional and inappropriate, but employees may not realize this if they’re only thinking of the phone as being a personal device. Employers need to understand the laws related to unlawful search and seizure, which could come into play if phones are searched illegally. Employers also must be sure to have policies in place that outline expectations, especially if personal use is allowed on work devices or if personal devices are used for work purposes. Bear in mind that even with policies in place that state that the employee cannot use the device for personal use, if it is common practice to do so, the employee may still have a reasonable expectation of privacy.
- Employee training should include information about expectations for use of company devices. It can be a tight rope to walk if the company does not pay or reimburse for the technology but expects employees to use it for work purposes (as is the case with some BYOD policies). There should be a clear understanding of when communications can be monitored and whether the employer is reserving the right to access any/all communication that occurs on company equipment (regardless of whether the equipment is also used for personal use).
- Employees should understand that harassment is never okay, not even in text message form.
- Social media policies are one place where appropriate technology use can be addressed since social media applications typically come with messaging services. But they’re likely not the only place this should be addressed.
- Employers also must be aware of the Stored Communications Act (SCA), which prohibits accessing electronic communications that are stored by a third party, such as a phone provider. This can make it more difficult to access text messages, as it states that permission must be granted by either the sender or receiver (and select others) of the communication. This may be relevant if harassment claims need to be investigated.
Technology will always influence policy. It pays to be aware of risks associated with employee use of technology and how those risks can impact the workplace. How has your workplace navigated these types of risks?
*This article does not constitute legal advice. Always consult legal counsel with specific questions.