Posted Nov 06, 2009 11:43 pm CST
As supervisors increasingly make objectionable comments to employees via text messages, resulting harassment cases over after-hours comments no longer are based simply on “he said, she said” evidence.
But this seeming bonanza of proof for plaintiffs lawyers is surrounded by potential pitfalls for defense attorneys, according to a Texas Lawyer article reprinted in Corporate Counsel.
It may be a violation of an employee’s privacy or statutory rights for in-house counsel to access text messages without the worker’s express consent, even if the employer pays for the BlackBerry, cell phone or PDA device from which they were sent, the legal publication says.
Especially since this issue arises at a time when employment litigation is exploding, defense lawyers should be wary of making an investigative misstep.
For a discussion of relevant case law concerning “textual harassment” investigations, read the full article.
National Law Journal: “Employers Under Siege: Discrimination Complaints Flooding Into the EEOC”