Employers: Protect Against Textual Harassment


In keeping with the ever-changing ways in which we communicate, texting can now be deemed as conduct constituting sexual harassment in the workplace.   Lawsuits involving texts between co-workers have begun to appear, and have given birth to a new addition to the legal lexicon: “Textual Harassment.”

This recent spate of lawsuits make it clear that employers who issue cellular phones to employees may be liable for text messages sent by employees over those devices.  In order to protect themselves, employers should devise a cellular device policy that specifically address textual harassment in the workplace, and set forth proper use of company issued equipment.  Here are a few suggestions for inclusion in any cellular device policy:

  • Employer-issued cellular devices are to be used for work purposes only.  
  • If employees are permitted to make personal use of their phones, set forth with specificity any prohibited conduct that may lead to immediate termination. 
  • Make it clear that employees will have no right to privacy when they use their devices.  You as the employer should have the absolute right to examine the device at any time for any reason.
  • Incorporate your textual harassment policy into your current anti-harassment policy.  In other words, improper texts on any phone (not just employer-issued phones) may violate the company’s anti-harassment policies.
  • Provide clear details instructing employees how to deal with harassing texts.  Instruct them that they should preserve all such texts, and report them immediately. 
  • Require every employee to sign and date an acknowledgment form confirming their receipt and understanding of the smartphone use policy.


 Undertaking these steps will not fully insulate an employer for potential liability.  However, failing to do so will certainly enhance the likelihood of liability if an incident takes place.



Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.

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