Workplace texting creating a growing list of implications

The ubiquity of cellphones and texting is changing certain aspects of the employment environment and the nature of the employer-employee relationship. "Texting" - "the action or practice of sending text messages" - as a form of communication is not new. But its societal prevalence (reflected in the relatively recent use and lexicographical acceptance of "text" and "texting" as verbs) and social acceptance brings new challenges for employers.

Cochran v. Schwan's Home Service Inc., 2014 DJDAR 10735 (Aug. 12, 2014), brought to the forefront the notion that California's Labor Code requires employers to indemnify employees for all necessary expenditures or losses incurred - including "cell phone plans" - in direct consequence of the discharge of employment duties. But while the opinion and the literature that it spawned heightened employer awareness regarding cellphone reimbursement, the opinion invites an important, though perhaps not-so-obvious, follow-up question: What other California laws are implicated by the prevalence of texting in the workplace?

Leaves of Absence

Both the federal Family Medical Leave Act and California's Family Rights Act prescribe employee-notification requirements for employees to qualify for leave under the Family and Medical Leave Act and California Family Rights Act. But the laws are silent regarding the permissible form of notification. The laws' vagueness leaves unprepared employers susceptible to litigation-precursor mishaps.

Texting's prevalence exacerbates the quantity of potential missteps. For instance, a given employee may have a habit of communicating via text message with his or her supervisor for various employment-related occurrences. Instead of the employee telephoning the office to inform the supervisor that the employee was involved in a fender-bender accident and will arrive late to work, an employee might send his or her supervisor a text message.

Work environments where texting is frequent increasingly face the prospect of employees texting FMLA or CFRA leave requests. Texting notifications are replete with potential pitfalls. First, if the texting device is a personal device, employer reimbursement is affected per Cochran. Second, there is a heightened risk of miscommunication. The texted supervisor may not regularly check the device (especially if it is a personal device) for work-related text messages. Overlooking notification, perhaps terminating the employee for three days of no-call, no-show behavior, might envelope an employer in costly litigation. Third, texted notification is more ephemeral than traditional notification, e.g., email, facsimile and even telephone calls (if logged). A lack of documented texting notification heightens the prospects of wrongful termination and discrimination litigation and adverse litigation results.

Privacy

Unlike the federal right to privacy, California's state right to privacy is enshrined in the constitution. Moreover, California's state right to privacy applies to private as well as state action. Hill v. Nat'l Collegiate Athletic Assn., 7 Cal. 4th 1, 15-20 (1994). Accordingly, under the state's constitutional rubric and state labor laws, California affords employees a heightened privacy right.

The confluence of texting and California's right to privacy is embodied in Labor Code Section 980. The section codified Assembly Bill 1844 (2012-2013), regulating employer use of social media. The statute's broad definition of social media includes "text messages" and proscribes California employers from requiring or requesting employees: (1)Â disclose a username or password for the purposes of accessing social media; (2)Â access personal social media in the employer's presence; or (3)Â divulge any personal social media. Exceptions include requiring employees to divulge social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or disclose usernames and passwords for employer access to employer-issued electronic devices.

Prior to passage of AB 1844, the Securities Industry and Financial Markets Association opposed the legislation. "SIFMA argue[d] that while [it] had no interest in accessing employee accounts that are used exclusively for personal use, the problem is that many people use the same account for both personal and business activity." Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1844 (20112012 Reg. Sess.) as amended Aug. 22, 2012. Analogously, unsuspecting employers may have employees texting business activity (e.g., leave of absence notification) to supervisors. But Section 980 generally precludes employers from accessing the information.

Employees using personal devices for business use present employers with a dilemma. For instance, if an employee sends an employment-related text message to a supervisor regarding activity protected by Section 7 of the National Labor Relations Act (e.g., complaints about wages) immediately followed by a text message notification that the employee requests CFRA leave. The employer may wish to know of the leave request notification but does not have a right to - and may prefer ignorance of - the NLRA-protected activity. Yet the logistical difficulty of accessing the notification without accessing the NLRA-protected speech, and the privacy implications of both, reflect real challenges.

(Sexual) Harassment

Employers in California face liability on various levels for sexual harassment (e.g., strict liability for supervisorial harassment of subordinates; potential liability for coworker harassment if the employer knew or should have known of the harassment). Texting presents one more social medium for sexually harassing comments or visual images.

The interplay of workplace texting implications on privacy and sexual harassment presents a quandary for employers. Since an employer may be strictly liable for sexual harassment in some instances, an employer may wish to know the content of its employees' social media, including text messaging. But employers are (generally) precluded from requiring or requesting social media information from their employees. Preventatively recognizing and addressing the predicament of harassing conduct via texting prior to litigation may prove prudent.

Termination

Voluntary employee terminations via text message are increasing in frequency and present challenges to employers regarding timely knowledge of voluntary terminations to ensure punctual payment of final wages, precluding waiting-time penalties.

Texting's ubiquity in the workplace presents real challenges for employers. Cochran's holding regarding reimbursement for cell phone use is only one implication of workplace texting. Other laws implicated include leave-of-absence laws, privacy, sexual harassment, and termination (wage and hour) laws. The list is nonexhaustive. But it provides a starting point for employers to consider when deciding whether to issue policies regarding texting in the workplace.