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Are Your Text Messages and Social Media Activity Private in the Workplace?

June 28, 2017

Written by Illinois Attorney Cynthia N. Pietrucha

Employee rights advocates often get asked the following question:  What happens if my boss wants me to share private text messages or social media posts for a pending lawsuit?

There is no "one size fits all" answer to this question.  We live in a data saturated environment full of electronic media, and the internet is not a private place for communication.  With the rampant use of texting and social media posts about employment matters, it’s becoming harder for companies to control and access certain employee communications, especially when it comes to employee’s personal devices.  Outside of authorship issues (i.e. someone using your associated phone or phone number to impersonate you) the legal rules of civil procedure impose certain obligations regarding requested documents in the company’s “possession, custody and control”.  

As it relates to personal devices, many companies have Bring Your Own Device (BYOD) policies, wherein they allow employees to use their own personal cell phones, laptops, etc. for work purposes.  I’ve helped companies write BYOD policies and understand how such policies can create a dilemma when it comes to producing text communications in litigation.

For example, looking at a 2013 employment discrimination case out of Kansas, Cotton vs. Costco Wholesale Group, it’s easy to see how access to certain communication can hit a legal roadblock.  In Cotton vs. Costco Wholesale Group, after suing Costco for employment discrimination, former Costco employee, Wayne A. Cotton, wanted Costco to produce text messages from other employees he found relevant to his pending complaint.  The problem, though, was Coscto encouraged employees to communicate via texting and the devices used to text were personally owned, as Costco had a BYOD environment, where employees could communicate on their personal devices.  Even when communications were business-related, the Court found that Costco had no legal right to obtain the requested text messages, as Coscto was not in possession, custody or control of employee’s personal phones and data contained therein.

In Illinois, employers are limited in what personal electronic data can be used in employment decisions.  The Illinois Department of Labor (IDOL) enforces the Right to Privacy in the Workplace Act, which was amended in 2013 to specifically make it unlawful for any employer to request or require any employee or prospective employee to provide any password or other related account information in order to gain access to the employee’s or prospective employee’s account or profile on a social networking website or to demand access in any manner to an employee’s or prospective employee’s account or profile on a social networking website.

Pietrucha Law Firm helps employees and companies with workplace disputes.  Our aim is to resolve disputes as harmoniously as possible, only resorting to litigation when necessary.  For more information, call (630) 796-3859 or visit us online at www.PietruchaLaw.com for 24/7 online chat.  The above information is not legal advice, and provided for general information purposes only. Although prepared by professionals, this information should not be used as a substitute for legal advice.  Reading such does not establish an attorney-client relationship as every case is unique and relies on individual facts.

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