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OMG—Time 2 Send Ees Texting Policy?

By Allen Smith  8/22/2013
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Anyone who has come in contact with Millennials knows how frequently many of them text. A lot of them don’t make or answer many phone calls but will answer or send a text in a nanosecond. That raises the question of whether employers need a texting policy to set the parameters for this activity in the workplace.

In some instances, texting might not require a separate policy but could be addressed in other practices or policies.

Reset Expectations

Take a call-in policy. Christine Walters, J.D., SPHR, an HR consultant and sole proprietor of FiveL Co. in Westminster, Md., recalled a manager who “was frustrated and wanted to issue corrective action to an employee who was repeatedly texting the manager when she would be late or absent.”

But the call-in policy did not expressly require an employee to call in, Walters noted. “It only directed employees to ‘notify’ their manager in advance of an absence or lateness,” she said.

“So the question was, ‘Why does that frustrate you?’ The manager was struck by a strong sense that texting just was not professional or appropriate, but could not really say why. It just didn’t seem professional. It was one of those learning moments when we realize that standards and expectations we take for granted may have to be expressly communicated— if they really need to be communicated at all. Maybe we need to be willing to change our expectation.”

In this instance the purpose of the communication was still achieved, because the texts notified the manager ahead of an absence or lateness, she observed.

‘I Need You Now’

Reasonable minds can disagree about what approach to take with texts.

Nesheba Kittling, an attorney at Fisher & Phillips in Chicago, said a call-in policy may include a provision prohibiting texts or e-mails. Sometimes employees “wait until the last minute and send a text. It’s a way to avoid speaking with the supervisor,” Kittling noted. “If the employee can’t speak on the phone, the supervisor doesn’t know why the employee is absent. If the supervisor does not get this information, the employer will not send Family and Medical Leave Act notification” when required.

Kittling is also wary of supervisors sending texts to employees. Shorthand is common in this type of communication and could create misinterpretations that lead to trouble under Title VII. For example, if a supervisor texts “I need you now,” meaning “I need you to report to work now” or “I need you to answer my text now,” an employee might misconstrue the message as salacious.

Organizations could consider including in anti-harassment policies a statement that offensive texts may not be sent or shared among workers. The policy also could caution employees that when they are using a company cellphone, they should have no expectation of privacy and the company reserves the right to monitor its usage, she said.

While supervisors shouldn’t be texting back and forth with employees, Kittling said, the organization might text employees about an emergency, such as someone with a gun entering the workplace or dangerous weather conditions. “It’s a quick way to reach everyone,” she noted.

The National Labor Relations Board has started to closely scrutinize social media policies, which is another reason employers should consider putting their rules about texts in a separate policy, rather than folding them into a social media policy, Kittling observed. The policy also should warn workers about texting so much that it interferes with their ability to get their job done.

No-Texting Policy

But don’t establish a no-texting policy in hopes of improving productivity, cautioned Chad Halvorson, founder of When I Work, managing partner of Meditech Communications and CEO of thisCLICKS in Minneapolis.

Unlike Kittling, Halvorson suggests that supervisors sometimes contact employees by text because, “The reality is that a text message is exponentially more likely to be read by your employees than an e-mail or voice message. The ability to reach employees reliably becomes critical when communicating work schedules or when a manager is trying to find someone to fill a shift at the last minute. The overall open rate for text messages is something like 97 percent—and even higher with Gen Y workers.”

Walters, however, thinks there might be circumstances under which it would make sense for an employer to institute a no-texting policy. “Retail and/or service-industry employers may implement a no-texting policy for employees working on the front line, such as tellers, receptionists, direct-care providers, customer-service reps and those who have the first line of sight and direct, in-person contact with customers and members,” she explained. “It is similar to ‘appearance’ policies that used to address work spaces and suggested employees not have food or drink at their workstation. It was not just for the purpose of ensuring crumbs and liquids were not accidentally spilled onto a keyboard but to also ensure employees are ready and available to give their full attention to customers, not chewing or drinking when the customer appears.”

In deciding how they want to address texting in their policies or whether to have a stand-alone texting policy, employers should “ask why you want to limit or prohibit texting—what’s your business reason?” Walters suggested. “Then narrow and tailor the policy accordingly. When you let business needs drive your employment policies, practices and decisions, you may reduce your risk of running afoul of any number of employment laws.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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