The Perils of Instant Messaging
When instant messaging first came out, employment lawyers warned employers about the perils of such products and the good advice that they should have some policy on their use. Back then, IM software was typically downloaded and then used by the employee to talk to their friend outside of the workplace and sometimes in the workplace. My how times change. Many business from law firms to consulting firms now have IM platforms in place and encourage their use by employees. They are less formal than emails (good and bad) and the way in which the messages themselves is stored or retained varies. Messages can be used amongst employees but there are certain platforms that allow for dialogue with folks offsite like customers and even friends. I’m not going to address whether such an IM platform makes sense for your business, only some suggestions on what to do if it is in place.
- Have a written policy in place. (Just like social media make sure there is something that addresses its use. A current social media or email policy may be a start for a policy.)
- Communications amongst employees should be for business purposes. (Is this always going to happen no – the exact same thing with email. But the ultimate purpose of IMing and even email is for the business.)
- If there are going to be communications with customers or clients make sure there is an appropriate policy. (No confidential information in messages. Some industries will restrict communications such as FINRA.)
- Retention policy. (Have one that is in place and enforced.)
When one of my clients tells me they have an IM platform I immediately start thinking about discovery (I know that’s sad). I think about the opposing lawyer asking a witness about whether he or she talked with the Plaintiff about [insert issue of dispute from discrimination to breach of contract etc. etc] via IM. Then I anticipate receiving a request for production for that information and finding out that it is or is not maintained. From there it goes to reviewing IMs that may or may not be problematic.
Regardless of my angst, make sure there is policy in place. Make sure that policy meets your business needs and is enforced.