Are Your Employees' Chats, Texts, and Tweets Risky Business?
As a business lawyer, I counsel small business owners about a variety of issues. Changes in technology frequently result in business owners to consider new policies to protect their business.
Unless your business has a written policy governing how and when employees use instant electronic communications, unintended consequences and potential liability is a definite concern. Instant communications continue to replace a significant portion of what was traditionally verbal or otherwise more formal written communications. There are millions of messages sent by employees which contain statements people traditionally have only spoken to one another about work, life, and other people.
As this excellent article, Let's Chat About The Legal Risks of Instant Messaging, points out, instant messages, social media, texts, and other forms of instant communication are laden with the potential for creating liability. Possible pitfalls to employee instant communication include:
- Revelation of confidential business or competitive information;
- Improper transmission of customer/vendor financial records;
- Potential for harassment or bullying; and
- The potential for the company to be bound to an unfavorable or unwanted deal.
Instant communications are easily preserved. As we've all likely experienced, this can be a good or a not-so-good thing. If your company gets into a lawsuit or other legal matter, it is likely that your employees' instant communications can be obtained and potentially used against the company. OMG!
Instant communications are usually made without reflection or editing, except maybe for auto-correct which may make things worse! Therefore, instant communications may provide a blow-by-blow account of an incident or dispute that may be inaccurate or damaging. Since instant communications are often made in the moment, they may fall within an exception to the “hearsay” rule which normally keeps out of court statements out of evidence.
Perhaps most critically, instant communications blur the line between working and off hours. If an employee is sending a work-related text from home at 9:00 p.m., they are likely considered to be working. This erosion of the barrier between work and home can create real problems. If an employee texting or IM'ing as to work matters causes a car accident or other harm, the company will have a liability problem whether or not the event occurred during traditional work hours.
Don't let an employee's reckless instant communication amount to a serious problem. Companies should adopt stringent, written policies regarding the use of instant communications by employees and the employees should sign an acknowledgement that they read and will abide by the rules. Limitations of the time, kind of communications, and content should all be clearly defined.
At Next Phase Legal LLC, we work with small businesses to develop a rational instant communications policy, and provide smart legal counsel on other business-related issues. Please contact us for more information about partnering with us.
Next Phase Legal LLC is a Massachusetts law firm based in Medfield, MA. We concentrate in working with business owners, civil legal matters, domestic relations, and probate matters.
Business lawyers serving the Medfield, Westwood, Walpole, Norwood, and Franklin, MA areas.