A recent TechNewsWorld article indicates that 80 to 90 percent of companies have some form of instant messaging (IM) in use by employees. A majority of these IM programs are taking place over external programs and a 2013 survey concluded that IM users send nearly 20 billion IMs each day—outranking “traditional’ SMS text messaging. Employers should be aware of the legal risks surrounding IM and recognize that while this form of communication is arguably the “water cooler” of the millennial generation, unlike real-world conversations around the water cooler, in the lunchroom, or over employee cubicles, instant messages can be captured, preserved and ultimately displayed in a courtroom setting.
IM has increased in popularity in the workplace in part because of the “instant” nature of the communication. While e-mail inboxes become increasingly clogged with spam messages IM allows employees to have real-time communications without irrelevant messages and can allow collaboration between multiple people while allowing users to easily distribute files to the entire work team.
First, if your company does not offer an internal instant messaging program, employees are likely using IM programs hosted by third-parties which can create a potential security soft spot in the organization and open up the potential for exposure of highly sensitive corporate data—or provide access for malware or unauthorized users to attack the company’s network. When managed by third-parties, the company is unable to monitor activity, control access, or enforce confidential or document retention policies.
Next, should a company be faced with some form of litigation new problems develop. IM systems generate and store information that must be preserved and produced if litigation or investigations are imminent. A number of jurisdictions have expressly required parties to produce IM in response to discovery requests including Connecticut and Pennsylvania. Even more telling as to the position courts are taking as to IMs are court sanctions against employers who have failed to preserve relevant IM conversations; this has been the case in Florida and New York.
Finally, because IM results in similar communications to that traditionally occurring over the water cooler, IM conversations can often result in damaging discovery information as employees do not appreciate that their IM conversations are being stored. Further, as previously mentioned, the instantaneous nature of the conversation will often result in more knee jerk and less reflective statements.
A number of steps could be taken to increase protections you can provide to the company as it relates to IM programs. First, your electronic use policy should specify what your company does and does not allow as to work-time instant messaging. Make sure that you limit the types of documents that can be shared over instant messages and define specific boundaries. If you are concerned about the lack of regulation and oversight the company has as it relates to instant messaging consider setting up an internal enterprise-class IM platform that employees can use. This would allow your organization to manage and monitor usage and allow archiving for document retention purposes. Finally, educate employees on IM programs and the fact that these written communications are stored and could later emerge in a number of different situations. Contact a member of Verrill Dana’s Labor & Employment Practice Group to help develop an encompassing electronic use policy that provides the protections necessary for your company’s culture.