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Bosses should take care with messaging policy
By Dr. Lynne Curry

Q. One of my employees constantly texts during staff meetings and it's irritating to me and disrespectful to others. I've repeatedly told her to cut it out but she says her texting doesn't distract anyone if she's doing it unobtrusively.

This morning when she slid her BlackBerry out during an important discussion, I glanced at her and shook my head; she kept texting. After 20 minutes, I finally had enough and grabbed it from her.

After the meeting she was in a snit, called me a jerk and told me the BlackBerry makes her really productive and that she's fully capable of multitasking. I didn't believe her, still had the BlackBerry in my hand and decided to prove a point by reading several of her text messages. She wrestled for the BlackBerry, telling me I had no right to read her texts and I told her, "If they're done on work time, I can read them." I did; the three messages were clearly personal and I told her she shouldn't be doing them on work time.

She left the job site, telling the receptionist I'd made her so upset she couldn't work. I need some help here.

A. You and your employee had a control battle and you both lost.

She lost because her disrespect showed when she ignored your signal and then tried to bluff her way through the situation. Instead, you learned she doesn't keep work-focused during the day.

You lost when you let her "it's not really a distraction" stalemate your "don't text in front of me" instruction and then let her push your button in front of others. Worse, you lost because you read more than one personal text.

In a landmark 2008 case, Quon vs. Arch Wireless Operating Co. Inc. et al., the 9th U.S. Circuit Court of Appeals held that a California police department violated the state and federal constitutional privacy rights of a sergeant and SWAT team member named Jeff Quon when it reviewed his personal text messages.

In that situation, the city's police lieutenant let Quon know he needed to reimburse the city for the minutes he went over the allotted amount for his pager. Although Quon paid for his extra minutes, the lieutenant grew frustrated with the repeated overages and asked the city to review Quon's texting to assess if all the messages were work-related. When the city found sexually explicit messages, it initiated discipline, not realizing Quon could successfully counter-sue for privacy invasion.

The city had a policy stating that employee Internet use and e-mailing needed to be work-related and the employer had the right to record, monitor and review transmissions with or without notice and without the employee expecting privacy. Despite this, the court ruled against the employer, declaring the city policy too general.

What does this mean to you? This appeals court has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Further, says Anchorage employment attorney Tom Van Flein: "Alaska's constitutional right to privacy is one of the broadest and most jealously guarded in the country. Before an employer surreptitiously reads an e-mail or text message sent by an employee without his or her consent, the employer should make certain that the employee has been fully informed that all forms of communications irrespective of content or subject matter sent or received on company equipment are deemed company property.

"Even then, the employer should attempt to get employee consent to review the content to minimize its risk, particularly if the policy allowing the employer to check is rarely used."

If a situation like this happens again, realize you have options other than grabbing your employee's BlackBerry and reading her texts. You could have asked her to excuse herself from the meeting, met with her in private and told her that she would be suspended without pay if she again texted in front of you. You could have told her to leave her BlackBerry at home. You could have even decided you wanted to terminate her for insubordination -- unless other factors would have made that termination questionable.

Further, the 2008 Quon case gives you and other employers a wake-up call -- you need to make all policies and employee handbooks specific on texting, blogging, Twittering and other Internet and PDA misuses.

Without solid policies, you put yourself and your disciplinary actions at risk.

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Lynne Curry is a local management trainer, consultant and syndicated columnist. Her advice and opinion column appears every other Monday. Questions for her column may be faxed to her at 258-2157 or mailed to her c/o Anchorage Daily News, P.O. Box 149001, Anchorage 99514-9001. Her e-mail is lynne@thegrowthcompany.com.

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