The Legal Use of Email and Text Messaging at Work

Email.  Every one of us uses it everyday.  It’s simple to use and it makes our lives more efficient.  However, because email is so casual and commonplace we have a tendency to forget about the dangers of it.  Especially when it’s used in business.

Making a mistake with business email could be devastating for your career and could result in liability for the organization you work for.  It is now common practice for attorneys in business litigation to subpoena email records. One bad choice could lead to legal difficulties, the termination of your employment or both.  The same goes for business texting.  Texting is just as casual and commonplace and also just as dangerous.  The improper use of text messages could leave you in the same legal jeopardy as the improper use of email.

It’s imperative that every employee understands the appropriate use of email, so let’s start with some facts about it.

First of all, email is permanent.  It’s virtually impossible to erase an email.  Let’s say you delete an email from your computer’s hard drive or use hard drive cleaning software to write data over the top of it.  It’s still a relatively easy task for a computer forensic expert to recover it.

However, let’s say that your hard drive is misplaced or destroyed.  Well you’re not out of the woods yet.  Most organizations back up all electronic communication, so a copy of every email that you have ever sent or received is most likely stored on your organization’s servers.

Even if your hard drive is destroyed and your organization has not backed up your email there is a third way to recover it.  Every email leaves an electronic trail on the way to its destination.  A forensic expert can follow this path and usually recover it.

And let’s not forget the recipients of your email.  Your email is probably on the receiver’s hard drive and if they’re with another organization it’s most likely backed up on that organization’s servers as well.  And if the recipient forwarded your email…well, the locations grow exponentially.  

To put it simply…once an email has been sent, it becomes a permanent record.

Texting isn’t much better.  Many organizations save a record of every text sent from their company phones indefinitely.  In addition, forensic experts can still find text messages on your phone or your recipient’s phone even after they have been deleted.

The second important fact about email and text messaging is that they are NOT private.  The Electronic Communications Privacy Act of 1986 made any email sent through an organization’s servers or any email or text sent with a computer or phone owned by an organization the property of that organization.

What does that mean for you?  Every email or text you send through your organization’s servers or with your organization’s computers, tablets or phones is not your property…it’s your employer’s property and has become an official document of your employer. This includes emails and text messages sent after work hours and away from the workplace.  If the communication is sent with your organization’s hardware or through your organization’s servers, you don’t own it.  This means it can be subpoenaed with any litigation involving your employer and can be used as evidence in any employment action taken by your organization.

To put it bluntly, employees should have no expectation of privacy when it comes to email or text messages.

So now that we know some facts about email and text messaging, let’s talk about some of the content that should never be sent through either method.

• Defamation.  Discussing a co-worker, colleague, government official, customer or anyone else can lead to personal or company liability if the topic is unproven or negative in nature.  This is commonly known as defamation and it can result in severe legal consequences.
• Harassment and bullying.  Bullying or harassing a co-worker by sending offensive messages about race, religion, gender, disability, age or family status can have very serious legal consequences.  This includes sending or forwarding offensive messages to family and friends.  Remember, every email you send is an official document of your organization and can be subpoenaed.  Would you want an offensive joke either placed in your permanent personnel file or read aloud in court?  Probably not, so don’t send or forward offensive messages.
• Confidential customer or co-worker information.  Sending confidential information such as credit card numbers, passwords, private health information or social security numbers is restricted in any organization.  When in doubt about what information can be emailed or texted, consult with a manager or your legal department.
• Confidential company information.   Sending information that is not available to the public such as financial data or the date of a merger or product release is strictly prohibited by every employer.  If an individual who sees your message makes a buying or selling decision based on your message it becomes insider trading – a very serious legal offense that often results in jail time.
• Copyright Infringement.  Forwarding, copying or downloading messages, pictures, music or video without permission can result in you and/or your organization being held liable for copyright infringement.  If someone else created the work, then always get permission from the copyright holder!
• Viruses.  You and/or your organization can be held liable for sending a virus as an attachment.   Never send or forward an email with suspicious attachments or from individuals you don’t know.  If an email that you send causes damage to another party, you are legally responsible.
• Contracts.  Any form of agreement sent in an email will hold up in court as a legally binding contract.  Before promising anything to anyone via email or text, stop and make sure you have permission to do so.  In many cases, a legal contract reviewed by an attorney is a more appropriate way to come to an agreement.

Read and understand your employer’s emailing and texting policies.  Many employers have specific policies related to your organization’s industry requirements.

In conclusion, when used properly, e-mails and text messages can be powerful business tools.  Just remember…every email or text you send is an official, permanent document owned by the organization you work for.  Ask yourself before sending a message, is this document one that I am confident enough to put my name on and post on a company bulletin board?

If it’s not, don’t send it.  You may save yourself and your organization from costly liability.