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
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
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
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
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
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
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