Employer may be liable for inappropriate text messages sent by employees, says Kristin LaRosa, attorney in the Labor and Employment Practice Group of Pepper Hamilton LLP.

“Many states have updated their harassment laws to address the recent trend in litigation of claims of ‘textual harassment’ against employers,” says LaRosa. Textual harassment is the term given to harassment claims asserted by employees who allege to have received harassing messages from co-workers or managers.

While such prohibitions may not be expressly included in federal or state employment discrimination and harassment statutes, recent lawsuits make clear that harassment via text message may be found to violate such statutes. Certainly, an employee claiming to receive sexually charged messages from a co-worker or supervisor may have an actionable claim of sex harassment. Similarly, an employee who is subjected to racially derogatory remarks in text messages may have a valid claim of race harassment.

LaRosa warns that an employer may be liable for text messages sent by employees over employer-issued devices, as well as personal devices, and that employers would be remiss if they did not have policies addressing textual harassment in the workplace.

“Complete insulation from liability can never be guaranteed, but policies that contain specific provisions should help to limit employer liability against textual harassment suits and provide employees with clear direction as to the proper and improper use of their smartphones in the workplace.”

LaRosa recommends the following key provisions when establishing textual harassment in the workplace:

  • employer-issued smartphones, cell phones or PDA devices are to be used for work purposes only
  • if the employer wishes to relax the rules to allow for limited, personal use of such devices, the policy should clearly define what types of personal use shall be acceptable. Conversely, employers should also provide examples of conduct that is not permitted under the employer’s personal usage allowances.
  • any activity on an employer-issued smartphone, and even certain activity between employees on their own personal devices may be subject to the company’s anti-harassment policy, including its sexual harassment policy
  • an anti-harassment policy should describe what constitutes harassment and include harassment that takes place via text message or is in any other way facilitated by a smartphone, cell phone or PDA
  • an anti-harassment policy should warn employees that any violation will subject an employee to further disciplinary action, including termination
  • provide clear details instructing employees how and where to report complaints of harassment and ensure that any complaints will be dealt with promptly and effectively
  • require every employee to sign and date an acknowledgment form confirming receipt of the employer’s anti-harassment and smartphone use policy and his or her promised compliance with it.