Now that the holidays are behind us and we’re all back at our desks you have probably discovered that many of your colleagues whether they be subordinates, peers, or supervisors have recently acquired a “smart phone” which enables them to do all of the functions and possibly more in the title of this article. Perhaps even you were the recipient of one of these “have to own” devices.  With the device came some un-advertised and less than desirable features. Among these are the loss of productivity and perhaps potential liability. The question for supervisors everywhere is what can we do about this and what laws can we rely on to enforce any policy or procedures we choose to implement.

Before addressing these questions let’s explore the impact text messaging and social networking sites such as Facebook have had on business and how often this media is being used in the workplace. We mention Facebook only because it is the most widely used and popular networking site in the world today.

According to the Nielsen Company the average U.S. cell phone subscriber sent and received an average of 216 phone calls and 79 text messages monthly in 2006. By the end of 2008 Nielsen reported a decrease of phone calls to 204 and an increase in text messages to 357 per month. As one can see, text messaging is now being utilized more than phone calls.

In October 2009 a report issued by CTIA titled, “CTIA – The Wireless Association’s Semi-Annual Wireless Survey Results,” included information that said 4.1 billion text messages had been sent each day in the U.S. during the first half of 2009, significantly more than the 2.1 billion text messages per day in the first half of 2008. How many of those messages were sent by employed individuals? According to the 2009 poll conducted by the Marist Institute for Public Opinion, nine out of ten (or 87%) of U.S. residents were cell phone owners, and that figure increased to 92% among employed Americans, meaning almost every employee in a company may have had a cell phone with text-messaging capabilities.

How many employees use Facebook? According to the August 2010 Nielson report titled, “What Americans Do Online: Social Media and Games Dominate Activity,” the majority of Americans spend their time online on social networking sites. Facebook, which in July 2010 reported 500 million subscribers, was the most-visited social networking site. Almost 85% of all time spent on social networking sites is on Facebook, compared to 5.6% on MySpace. It is quite possible that the American workforce spends the majority of their workday engaging in some form of social networking activity.

Employers Are Also Guilty

Employers are also texting and using social networking to conduct business both externally and internally. For example, an article titled, “Small Businesses Marketing with Text-messaging,” from AllBusiness.com states that “text-messaging is gaining popularity as an advertising medium with business today because it is relatively inexpensive and allows businesses to reach out to highly targeted consumers.”

If you are among those who believe that Facebook is only being used by the under achieving worker, consider the fact that many employers are also now using Facebook to not only promote their businesses but also to screen job applicants and even terminate employees. In June 2009, CareerBuilder.com reported 45% of the employers utilizing its services were using social networking sites to screen potential employees. Proofpoint, an online security firm, reported that 8% of employers with more than 1,000 employees have admitted to terminating employees for writing what they considered to be inappropriate comments about the company or their co-workers on Facebook and other social media sites.

One of the most serious issues for employers has been the ongoing effort to minimize a hostile work environment especially when it involves sexual harassment. According to a July 2009 article by Law.com titled, “Textual Harassment: No Laughing Matter”, text-messaging in the workplace is “turning into a growing liability for employers, which are landing in court over inappropriate and offensive texts” that are showing up on employees’ cell phones. Another article titled “Text Messages and Sexual Harassment” dated February 2010 on Expresspros.net notes that “even seemingly innocent text messages can be the source of unwanted advances by a co-worker.” For example, “winking or smiling emoticons” can make a message seem inappropriate. Text messaging can propel the employer into a lawsuit. Text message lawsuits have increased in recent times and the National Law Review believes the trend is likely to continue.

What’s The Law?

To date there is no federal or state law that requires employers to allow employees to have access to their personal cell phones, or to make or receive personal phone calls during work hours.

There is also no federal law that permits or prohibits an employer to monitor or search an employees’ personal communications equipment. However, while the First Amendment bars the government from infringing on citizen’s freedom of speech, it does not prohibit private employers from limiting their employee’s speech. Thus, if employees express their negative feelings towards their employer on Facebook or anywhere else online, it is arguably considered to be the same as holding up a placard on a public street corner for all the public to see.

Does the employer have the right to search their employee’s personal equipment? This issue was indirectly addressed in a July 2010 U.S. Supreme Court case in which a public employer (the City of Ontario, California) and the city’s equipment, issued to the employee for employment use, (not the employee’s personal equipment) was involved. Without going into the specifics of the case, the Court ruled in the City of Ontario v Quon that the public employer’s review of the employee’s personal text messages on city (employer) issued equipment did not violate the employees’ Fourth Amendment (search and seizure) rights.

While the Court’s decision was focused on public employers, there was a concurring opinion by Justice Scalia arguing that the “reasonable expectations” of employees using company issued electronic devices should be addressed generally and not limited to public employees. Even though this case was not a clear win for private employers, the Quon decision suggests that all employers, both public and private, have the right to review and monitor employee activities on both equipment and systems provided by the company to the employee and that employees should have no expectations of privacy when using company-owned equipment or in any communications they have using company-provided equipment and systems such as text messages, e-mail, social media, and other technology media. 

In the majority of states there is no state law that would prevent a company from taking disciplinary action toward an employee for negative comments the employee may post on Facebook or any other networking site or on the Internet, even if the employee did it after hours using their personal equipment.

However, California, Colorado, and New York have passed laws limiting the employer’s ability to discipline or terminate an employee based on lawful activity (posting comments of Internet sites like Facebook) when conducted outside of working hours and away from the employer’s premises. See California Labor Code §96(k) and §98.6(a); Colorado Revised Statute §24-34-402.5; New York Labor Code §201-d.

A few states have also passed laws making it either a misdemeanor or felony for harassing other individuals through text messaging, instant messaging, electronic mail or any similar communication.

So what are employers to do when they are no laws to assist not only in protecting them from harassment issues but also those employees who abuse the tools the company has provided for work use? We will address this question in our next article along with suggested policies dealing with messaging and social media sites.

Meanwhile, all of us, employers and employees, should keep in mind that as technology continues to advance the development of hardware and software to facilitate communications and entertainment in both the personal and business aspects of our lives it will require more diligence by all of us to respect and protect the privacy of everyone.

I wish you well.

The information provided above is for educational purposes only and not provided as legal advice. Legal advice should be obtained from a licensed attorney in good standing with the Bar Association and preferably Board Certified in either Creditor Rights or Bankruptcy.