I recently received a couple of text messages which I initially assumed to simply be bizarre spam. The first one started with "This message is to all", and then proceeded to set out the procedure for changing kegs. I didn't even read it - firstly because of my assumption that it was spam, and secondly because I don't generally throw keg parties...
When I received a second text from the same number a few evenings later, I realized that my initial assumption was wrong. The second text was, again, a "message to all", and then raised concerns that some of 'you new girls' were making mixed drinks from smartphone app recipes and not properly charging for the amount of alcohol involved. Not spam, just a wrong number, and intended for employees. I googled the phone number, and it's connected to a pub in downtown Toronto. Next question for me: Do I text back and say "wrong number"? Or do I go further and suggest that they need to adjust how they approach communicating their policies to their employees?
The text message went on to explain how a non-standard drink should be charged, highlighted the importance of them not losing money for the establishment, pointed out that their tips would presumably be higher on higher bills, and included a veiled threat of job loss if caught undercharging for drinks.
And it got me thinking: This is a clever way of communicating with employees, but is it good enough?
On its own, the answer is No, for reasons which should be obvious, especially given the context. If I'm mistakenly receiving these texts, then it stands to reason that there's probably an employee *not* receiving them. So she may not get the memo about how to charge for non-standard drinks, and therefore clearly shouldn't be subject to discipline for failing to comply with the direction.
As well, text messages are far more difficult to convert to hard copy (or even to other electronic formats) than other media, like emails. My phone only keeps about a month's worth of texts, and I'm not even sure how to preserve them beyond that, if I wanted to. In other words, if I sent a text message to an employee giving instructions on how his job was to be done moving forward, and a few weeks later I discovered that he still wasn't following my directions...that text, and any response he sent to it, might be gone.
Nonetheless, these issues are lawyer issues. As a lawyer, I am always asking how we can produce the best court-admissible evidence that the message was given and received. This is why lawyers put signature lines for the employee in policy memos and disciplinary notices - to get the employee to acknowledge that it was brought to their attention. And this can be very important in situations where litigation arises. (Some employers think that the acknowledgement field is overly cautious. It isn't. I have had to litigate the question of whether or not an employee actually received a disciplinary notice, in a situation where the employer came to me when he was already being sued in wrongful dismissal, and had a reasonably strong trail of progressive discipline, but the employee denied ever having received any such warnings.
As a practical 21st-century businessperson, however, I see this approach as being clever for an employer dealing with large numbers of young adults. Text messages and social media are the primary means of communication for average young people today. It's how they connect to their world. Memos and letters are archaic, and are half-likely to be ignored.
And particularly in a workplace like a pub, where employees don't have workstations nor uniform hours, it isn't always feasible to distribute a memo and require a signed acknowledgement to be returned: If you want to get a message to everyone, you step into their world of communications.
So how do you reconcile the practical need to communicate with young people in a dynamic workplace, with the legal need to generate court-admissible evidence of your directions to your employees? There's the rub. The easy answer is to simply duplicate, to use written memos to confirm the contents of text messages. But it kind of defeats the point, and one can imagine other challenges arising that way. (That being said, it certainly does *not* replace the need for a policy manual.)
Texting may not be completely impractical for non-disciplinary matters, but you need to do a few things to make it work:
(1) The paperwork: Having contact information forms for employees to fill out, at the start of employment and when they change information, is fairly common; adding to such a form a field regarding text messages, confirming that their cell phone receives text messages and consenting to communication via text message, would be prudent. (NB: You also need to make sure you're sending your texts to the right number.)
(2) Regular communications via text message: Whenever you're sending any significant number of messages to someone, by *any* means, you're looking for at least occasional responses. If you're talking to somebody in person, and they aren't looking at you or responding to you, chances are that they aren't hearing what you're saying. The same is true of letters, emails, text messages, Facebook messages, etc. Not every correspondence calls for a response, but there definitely comes a point where, if you aren't getting direct responses, you need to start asking if the messages are being received. Expanding the use of text messages into areas that *do* call for feedback, such as scheduling and availability, and operational queries, will cover most of this, but it's still something to be alive to. Relatedly, feedback is important in many contexts - very few areas of contemporary employee relations should entail a completely one-sided, top-down, communication structure.
(3) Record the conversation. There's probably a way of saving and printing text messages. I don't know what it is, but if you're relying on text messages to communicate with employees, you need to figure it out, and do it regularly enough so as to not lose any data.
(4) In serious and disciplinary matters, you still need to go to more direct communications. Firing someone by text message, for example, simply isn't okay, and there would be practical difficulties with disciplining somebody by text message that are very difficult to get around consistently.
While it's tempting to avoid difficult conversations, and it would be so much easier to fire off a text message saying, "I know you did x, don't do it again or you'll be fired", the reality is that there's often no substitute for an in-person meeting. An essential part of a meaningful disciplinary process includes investigation, which includes an opportunity for the person to respond to the allegations. Sometimes there are good explanations for apparent misconduct; the employee needs an opportunity to give such an explanation, before you render judgment. Besides, for a serious matter, a one- or two-line text message just...doesn't convey the message that this is something you take very seriously.
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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
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