If your employees are communicating with each other and clients using texting or instant messaging using their own phones, should you ever need access to those communications you could be in a for a rude surprise.
While the immediacy of texting and instant messaging is great for business as it allows faster communications, better collaboration and more responsiveness, the downside is that your organization likely can’t easily track and retrieve those communications if the employees are using their own phones for those purposes.
It becomes even harder if the communications are via instant messaging apps like WhatsApp or another encrypted messaging service.
As an employer, it’s important that you set clear rules for communications for your employees in order to protect your company’s interests, particularly if you are sued and require backup evidence to support your case.
Plaintiffs’ lawyers have already started demanding the production of text messages and e-mails during discovery. If litigation ensues on an issue, you may have a duty to preserve text messages if they are business-related. When they are on one of your employees’ phones, you have another hurdle to overcome.
There is a history of instant messaging and texts on phones; the trouble is how do you access it if you need it?
In most cases, an employee who uses their phone for work will gladly provide the text or messaging communications when asked, but if they refuse, things get trickier.
Due to privacy laws, you cannot demand to see their phone and start rifling through their apps and files. But various courts have ruled that employers have a right to compel discovery for business-related text messages sent on a worker’s personal device.
However, the courts have not been inclined to allow an employer to look at an employee’s personal device if the individual didn’t use it for written business communications. In other words, the employer can’t go on a fishing expedition on their employee’s phone looking for “evidence.”
If you’re caught in a situation where your employee refuses to turn over business-related e-mails, or deletes them, discuss options with your lawyer.
Pre-empting the problem
Texting and instant messaging are a potential minefield for employers. It’s your right to access all company communications among employees and between them and clients and vendors.
To ensure you have a handle on it, you should set rules outlining what method of communication staff may use for business purposes. Some possible rules include:
- Requiring the use of company-issued devices for all business-related communications.
- If you don’t want texting or instant messaging of any kind for company business, that needs to be spelled out — including ramifications for breaking the rule.
- If you decide to allow texting and instant messaging, your policy should be clear on what kind of communications are okay (using WhatsApp, for example).
- Policies regulating the use of personal devices for business purposes, including rules for preserving business-related data on these devices.
- Policies that give your company the right to access employees’ mobile devices to obtain and preserve business-related data if necessary.
The above steps should help ensure that you can access communications that could be crucial if your firm is suddenly drawn into litigation. As mobile phone communications evolve to new platforms, ensure that your policy includes broad definitions of messaging apps to cover any new ones that will eventually come to market.
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