Texting Appears in Employment Litigation

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Texts can resurface in employment law litigation, so employees should be trained to keep all of their communications, including texts, professional. All too often, employees think that their texting is personal, according to Christine Walters, MAS, J.D., SPHR, a consultant with FiveL Company in Westminster, Md., and author of From Hello to Goodbye: Proactive Tips for Maintaining Positive Employee Relations.  

Harassment Claims

Walters noted that in a Feb. 1, 2012, decision, an employee kept all the romantic texts that a male co-worker sent to her (Stevens v. Saint Elizabeth Medical Center Inc., C.A. No. 2: 10-20-DCR (E.D. Ky. 2012)). In that case, a nurse and doctor had a consensual affair, which included them having sex at work. The doctor told the nurse he was in the process of divorcing his wife, but his failure to obtain a divorce led to the breakup of their relationship. After the breakup, the doctor allegedly continued to pursue the nurse, sending romantic text messages and attempting to touch her.

She saved the messages and they resurfaced in an affidavit that quoted his “distressing” text messages. One, dated Sept. 6, 2009, implored: “Hello dear Denise, silly lady, No there will never be another soulmate. I found one and her name is Denise.” Another followed on Sept. 8, saying, “Are you there, Denise?” And another on the same day said, “Can I call you this afternoon following your hair appointment.” On Sept. 12, he texted, “Denise, probably need to meet.” And on Oct. 2, he texted, “Denise, I am in love with you so big. I want to live the rest of my life with you. What is wrong. Please say we can meet for church tomorrow.”

The nurse was fired for disruptive work behavior and having sex on the premises. The doctor also was terminated for having sex at the office. Her harassment claim failed because the messages “clearly did not create an environment that a reasonable person would find objectively hostile.” But the case demonstrated that texts may be saved and reappear in litigation.

“Texting seems to have evolved in a world of its own with lexicons, acronyms (LOL, TTYL) and a whole new language that has not carried over to other forms of e-communication,” Walters said. “The use of this slang seems to foster an overall sense of relaxed communications that may lend itself to more personal and less professional comments, questions and statements.”

“Training is needed on texting,” Ron Chapman, an attorney with Ogletree Deakins in Dallas, told SHRM Online. Texting might be harder to recover, and employees might assume that a company does not have access to them, but texts can be retrieved, he cautioned. Chapman recommended that text training be paired with anti-harassment training, where employees should be told “don’t do anything you would not do in front of your mother.”

Walters remarked that she has “seen issues arise in which an employee and manager may be friends or have a romantic relationship outside of work. They think their messages from their own phones and off work time are their own.” She noted that if a harassment charge is filed, the manager’s texts may be used as evidence of harassment. “On the flip side, the employee’s messages to the manager can also be used defensively by the employer to show that sexual, racial or other off-color comments/jokes were welcomed,” she added.

Wage and Hour Implications

Texting might be relevant in situations other than harassment, Walters noted.

Suppose an employee is out on unpaid leave but texts a manager as early as 4:30 a.m. and as late as 9 p.m. The texts could raise a question as to whether those communications are time worked for which wages are due, she noted.

A manager might text an employee in the evening to be ready for a 9 a.m. meeting the next day. If the manager has an expectation that the worker should be monitoring his or her phone and come prepared for the meeting, the time the employee spends in reading and responding to that text might become time worked and compensable under federal and state wage and hour laws.

Walters said that “for several years now I have seen it become a more common practice for employer’s e-mail policies to remind employees that delete does not mean delete—messages may still be retrieved.” She added that, “Likewise, I have seen those policies and educational programs broadened to include e-communications, not just e-mail.”

Allen Smith, J.D., is manager, workplace law content, for SHRM.