“Ask Sarah” Column

Dear Sarah,

Our supervisors text employees all the time—about schedules, shift changes, or quick reminders. But some texts are getting a little too casual. One manager was texting an employee memes at night, another sent a “happy hour?” invite on a Sunday. Nobody means any harm, but it’s starting to feel unprofessional. Is this something we should address?

Signed,
Text Me, Maybe.

Dear Text Me, Maybe,

Absolutely. Texting has entered the workplace chat! It’s fast, easy, and often feels friendlier than email. But that same informality can be a problem, especially when a supervisor is texting someone they supervise. What feels casual in the moment can read as too personal, or even intimidating, when the power dynamic is viewed later through a legal lens.

Keep in mind that just because we can communicate with our employees at all hours, doesn’t mean we should! Late-night messages about non-urgent issues (“Hey—don’t forget your report!”) can cross from helpful to intrusive, both in the subject matter and in the timing. Email and remote work capabilities have already blurred the line between work and home and texting an employee ramps this up even further. Supervisors should respect their employees’ work hours and understand they should not communicate about non-urgent items via text during off-hours.

This is especially important for non-exempt employees. If a non-exempt employee receives a work-related text from their supervisor, and spends time addressing it, that is compensable time that should be recorded and paid. There are recordkeeping challenges associated with this—do your employees know to record this time? It is best to keep non-urgent communications limited to work time to avoid the possibility of your employees working off the clock.

Additionally, unlike email, text messages are rarely stored or backed up in a way that protects the organization. This is especially true if your organization has a “BYOD – bring your own device” policy, rather than providing phones to employees. In an investigation or lawsuit, texts are discoverable—and once they’re gone, they’re gone. A “missing” text thread can look like evidence was deleted, even if it wasn’t intentional.

Employers should train their supervisors that for anything that involves employee performance, scheduling, complaints, or discipline, supervisors should follow up with an email or note in your official system to create a record, or otherwise save the texts to your internal systems.

Public or governmental employers have additional record keeping responsibilities. If you’re a city, county, or other public entity, text messages about work are public records under the Texas Public Information Act—even if they’re sent from a personal phone. This means that both the employer and the employee have an obligation to retain those records properly in the organization’s file, and if the organization receives an open record request, text messages may be among the responsive documents. Supervisors should assume that any text about work could eventually be read by someone outside the organization.

Finally, folks tend to speak more informally via text message and boundaries can erode quickly. A friendly “happy birthday” can lead to casual weekend chats, which can lead to misunderstandings, perceptions of favoritism, or at worst, allegations of harassment. Additionally, emojis, memes, or jokes that seem harmless can take on a different tone in writing, especially when the sender and the recipient can’t see facial expressions or hear tone of voice. Even innocent banter can be misinterpreted if it’s private or one-sided.

Frankly, my preference would be to ban texting about work related matters (we already have the ability to call, email, and send an instant message via Teams!), but I am coming around to understanding that that is simply not realistic for some organizations. If texting is imperative for your organization, consider adopting short, practical “texting etiquette” guidelines (or a formal policy, if you prefer). Here are some suggestions:

• Limit texts to operational or time-sensitive issues.
• Keep messages professional and during work hours.Don’t discuss discipline, performance, or complaints by text. Follow up important decisions in email or your HR system.
• Assume every text could be read aloud in a deposition—or a council meeting.If you’re a public entity—all work-related communications must be timely transferred to the organization’s records, or at least one of the devices in the communication must be department-owned (with appropriate record-keeping measures set up).

After you put these measures in place, remember that your rules and policies are only as good as your communication about them! A quick training or reminder at your next supervisor meeting can reinforce expectations and save headaches later.

“Ask Sarah” is prepared by Sarah Glaser, Chair of the Firm’s Employment Law Practice Group. If you would like additional information or have questions related to this article or other employment matters, please contact Sarah at 512.322.5881 or sglaser@lglawfirm.com.