Employers have new potential issues to face in the form of harassment via text message.
Forty-six states have laws on the books that explicitly include electronic forms of communication (texting and email) within stalking or harassment laws.
According to the National Conference of State Legislatures, 20 to 40 percent of all stalking cases involve electronic communications.
So what does this mean for employers? You now have employees who are suing, alleging "textual" harassment by a manager, supervisor or other employee.
In California, sending just one text whose message is considered threatening or obscene is enough to qualify as harassment.
The current cases paint a stark reality of today's workplace.
In one case, a female manager sent pictures of her private parts to a subordinate.
Harassment charges were brought by the subordinate and the case in now in litigation.
In another case, two coworkers started a string of colorful texts that ended with the male employee suggesting that they meet at a hotel.
These messages were copied to a third employee who thought that the rendezvous had taken place and shared the news with other employees.
This case is also currently in the court system.
What can an employer do about this? Well, it becomes very difficult to manage the situation if the texting takes place during the employee's off time and doesn't use company equipment.
Furthermore, "texters" don't always use complete words or sentences and thus the possibility of understanding exactly what was meant can be a challenge.
Lastly, most employers don't have policies that specifically address text messaging and they certainly haven't included texting as part of their sexual harassment classes.
Textual harassment can also be construed as texting someone past their desire for contact with another person.
The language in the texts themselves might be harmless, but the number of actual texts is obsessive.
There is no case law or legal precedent to establish how many texts are too many, but some states say there must be an actual "intent" to harass based on the volume or content of the messages.
In the case of textual harassment, it would be a ideal for the employer to write an addition to their current company policies and have it signed by all employees.
This would put all the employees on notice that textual harassment exists and may cause them to hesitate before sending a text to another employee.
It also might be necessary to document the use of texts on company cell phones to see if there are excessive texts to another employee's phone.
Remember, there is no privacy right as it pertains to a company-owned phone.
At the end of the day, your interest in addressing this issue will boil down to you assessing your legal risks and how much of a problem you think you might have.
You could always send a text on the subject.