Cell Phones: Three-Pronged Problem for Employers

Twenty years ago, such a call out would have rung a landline on a nightstand, but today, fewer and fewer people have a landline.  The Centers for Disease Control and Prevention (CDC), which tracks phone usage, states that “the second six months of 2016 was the first time that a majority of American homes had only wireless telephones,” while the percentage of households with a landline as their only phone communication device was 6.5 percent.

The shift from landlines to cell phones creates better connectivity for employees and employers.  Employers are able to get in contact with employees more quickly and easily than ever before, while employees are able to receive calls, emails and texts about emerging issues while out of the office.  Employees travelling for work, or working in the field, have a way to call for help in an emergency, such as being broken down on the side of the road. 

And the convenience is in no way limited to employees outside of the office. A receptionist can text a staff member in a meeting that their next appointment arrived early, rather than walking a note into a meeting or knocking on a door and interrupting.

According to a textrequest.com article:

• Over 6 billion texts are sent every day in the United States.
• 97 percent of American adults text weekly.
• Americans text twice as much as they call, on average.
• Nearly 70 percent of employees think text should be used for interoffice communication.
• 33 percent of American adults prefer texts to all other forms of communication.
• Texting is 10 times quicker than phone calls.
•  95 percent of texts will be read within three minutes of being sent.
• Average response time for a text is 90 seconds.

So if cell phones represent an increase in communication and customer service, what could possibly be the down side? 

In 2015, a case out of the State of Washington crystallized the problematic nature of using text messages in the course of conducting official public business. In Nissen v. Pierce County, 183 Wash.2d 863, the Washington Supreme Court found that “text messages sent and received by a public employee in the employee’s official capacity are public records of the employer, even if the employee uses a private cell phone.”

 In the case, the Pierce County prosecutor used his personal cell phone in the course of his official duties. 

In considering whether the text messages exchanged using his personal phone were public records, the court  found that text messages sent or received in the employee’s official capacity as an elected prosecutor “can be public records of the county, regardless of the public or private nature of the device used to create them.” 

Subsequently, the public official was ordered by the court to “obtain, segregate and produce those public records to the county” to comply with the Public Records Act (PRA).

The ruling went on to say, “if the PRA did not capture records individual employees prepare, own, use, or retain in the course of their jobs, the public would be without information about much of the daily operation of government.”

In the interest of transparency, business messages must be produced as public records, even if the records were created on a personal device.  And in order for a public entity to produce such records, they must be retained and maintained. 

The ruling considered not just the language of Washington’s Public Records Act, but also noted three local government policies advising employees that public business on a personal mobile device is subject to the state public records act. 

Each example includes language about retention of information on a mobile device.  One of the examples referenced by the court, the Thurston County Administrative Manual, Personal Mobile Device Policy, states, “Employees shall not use texting for any County business.” 

While some local government agencies, like Thurston County, prohibit all texting for business, regardless of whether the device is employer-owned or private, other organizations have decided to allow limited texting.  MRSC Rosters, a directory for public agencies and businesses in the state of Washington, lists Benton County as such an example.

The county’s policy generally prohibits texting.  Exceptions, however, “are allowed but must be approved in writing by a department head or elected official and must be coordinated with Central Services in order to ‘effectuate the archiving of such text messages.’” 

Providing company cell phones doesn’t solve the problem either, as text messages must be archived according to applicable records retention laws.

In November 2017, the Tallahassee Democrat newspaper filed a lawsuit against the City of Tallahassee for failing to produce text messages belonging to the city manager, alleging the city violated state public records law by failing to preserve text messages.

The text messages had been deleted from the city manager’s personal phone. 

The city does not dispute that the messages are public records and intends to use the litigation to create policies and procedures for archiving and producing text messages that will ultimately be approved by the state court.

And while some technology companies are seeing opportunity in this emerging area, many organizations have not moved quickly to adopt any new technology.

Additionally, even once they obtain the necessary technology, their policies may still be out of date or may make the technology ineffective. 

To avoid burdening their officials with multiple cell phones — the work phone and the personal phone — many counties have policies that provide a cell phone reimbursement or a cell phone allowance that is paid to an official to compensate for use of his personal phone for public business. 

But allowing officials and employees to use their personal phones for public business takes the control of public records out of the organization’s hands. No matter what technology the county has in place, it’s quite unreliable if employees are expected to self-manage their texts.

Ultimately, it sets the entity up to be the next city of Tallahassee, acknowledging that the requested message is a public record, but having no ability to retrieve it before the employee deletes it.

(Not to mention the cumbersome nature of these policies, and their potentially subjective and inconsistent application between departments or between employees. That’s a whole other article.) 

As your organization or department considers revising your cell phone policy to keep up with the increasing use of texting, don’t forget to consider the following questions:

1) Should the organization prohibit texting?

2) Should the organization provide employer-owned cell phones for business so as to prevent personal cell phones from creating public records?

3) How will the organization retain the information from cell phones according to the public records law applicable to your jurisdiction?

An elected official with many field employees shared that her department previously had county cell phones available for employees going into the field, and over time, fewer and fewer of the organization-owned phones were being used.

Employees preferred to use their own mobile devices.  As employees begin to better understand that their personal devices may be exposed to public records scrutiny, though, perhaps they will no longer want to use their personal phone for business. 

Perhaps carrying two phones will become the more convenient option.

Or, rather, public entities will determine they can no longer value what is “convenient” for employees over the risk of civil liability and the erosion of the public trust.