“Ask Sheila” Column

Dear Sheila,

We are a public entity and are finding more and more that our employees are using their personal cell phones for work-related reasons. Very few employees have a work-issued cell phone but there is no denying the convenience factor that comes with being able to use your cell phone to send a quick text message. Should I be concerned about allowing employees to use their personal device for official communication?

-Texter

Dear Texter,

Good eye! You are correct that there are several concerns connected with employees’ use of their own personal device
at work, particularly for a public employer covered by the
Public Information Act (“PIA”). This is especially true after the passage of SB 944 last year, which amended the PIA to clarify certain things related to public information on privately-owned devices.

As a general statement, just because something is on an employee’s personal device does not make it irrelevant from an employment lawyer’s perspective, even for private sector employers. If you are audited or otherwise subject to an investigation by a governmental agency, that agency most likely has the power to obtain records from your employees’ personal devices. If you are sued, such information may often be obtained through the discovery process. This can lead to the uncomfortable situation where an employee must allow access to their personal device, even if they do not want to. For this reason, it is best to have employees avoid using their personal devices to communicate as much as possible, unless they are using the employer’s email account.

This was true even before SB 944, but even more important now for public sector employers.

SB 944 is a clarification of what has already been accepted as true: that communications and other information contained on privately-owned devices are public records if they concern public information, and the employee does not have a personal property interest in such records.

SB 944 provides procedures for preservation of such records on personal devices that apply to both current and former government employees:

The employee is designated a “temporary custodian” of such records and must forward or transfer the information to the entity’s custodian of records to be preserved within 10 days.

The document must also be preserved on the personal device if necessary to preserve the metadata and other information about the document (in other words, you can’t just take a screenshot of the text and email it to the entity).

The governmental entity has an affirmative duty to locate and gather public information held on personal devices, whether from current or former employees.

SB 944 also clarifies that the Records Retention Act covers such documents on personal devices, and destroying such documents (such as auto-deletion of a text) is a Class A misdemeanor. Although texting is ubiquitous and sometimes the most convenient form of communication, we have long advised that all public employers require their employees to refrain from texting or creating other public documents, such as photographs or notes, only accessible on personal devices. We have advised our public sector clients to adopt a policy on this, and now advise further strengthening those policies to account for transferring such documents to the employer if they are created. This would include communications as simple as employees texting their supervisor about tardiness; and if this happens, then the supervisor must preserve the text and transfer it to the employer’s record retention system.

One caveat is that transitory messages, such as a text arranging lunch plans, are not covered under record retention laws. However, the line between transitory messages and messages relating to personnel issues is unclear, and because of this, we generally advise clients that all texts between supervisors and employees qualify as personnel records and must be retained under record retention laws. For practical reasons alone, we often use text messages to refute employees’ later claims about their reasons for absence or tardiness, to demonstrate whether an employee provided proper notice of tardiness, or to investigate inappropriate workplace communications.

The bottom line is yes, you should be concerned about employees using their personal device for official communication, and there are several steps you can take to mitigate this risk. If employees have access to work emails through their phones, then they should be encouraged or required to email when remotely communicating: this allows the messages to be automatically stored in the employer’s server. Also, there are programs available that may assist with preserving text messages on personal devices that we recommend looking into, including Microsoft Teams. Use of a program like this to preserve records, along with a strong personnel policy, and providing training to all of your employees about their obligations under the law will help you reduce risk and stay in compliance.

“Ask Sheila” is prepared by Sheila Gladstone, Chair of the Firm’s Employment Practice Group. If you would like additional information or have questions related to this article or other matters, please contact Sheila at 512.322.5863 or sgladstone@lglawfirm.com.