Should I Be Saving Work Texts?

In this new era of remote work, many employees are using any and all technological means to simply get work done, including SMS messaging. Most of us, when physically at work, are careful with our work email. We are thoughtful about our content and perhaps mindful that we are creating a “record” of our communications, stored on our employer’s email server. Employees having difficulties at work, too, for example with a hostile supervisor or a lewd co-worker, often have the presence of mind to download an offensive email, to save it in case it is needed for evidence later. But texts? We have long thought of these as a vehicle for informal social communication. Many delete these to free up phone storage. When our texts contain work-related content, are they safe to delete? For a variety of reasons, deleting work-related texts can be very problematic to employment law claims.

After an employment law complaint is filed in court or with an administrative agency, like the Equal Employment Opportunity Commission, there is a period of investigation for the parties. In brief, the employee and employer are required to produce all evidence in their possession supporting their claims or defenses. Employees’ claims frequently require showing the nature of a supervisor’s communications or the timing of a supervisor’s decision to change, for example, a work assignment. If the employee does not physically have, to produce in this investigatory phase, the relevant texts she recalls receiving, her case can be weakened tremendously. Worse the employee who has deleted texts can be vulnerable to accusations from her employer that she intentionally did so, to hide, for example, performance problems that the employer contends are the real reason for its negative treatment of the employee!