A Hot HR/Legal Topic: Text Message Retention

Dare I say record retention is now sexy? Oddly enough, “to save or not to save” in the HR/Legal world is a provocative topic when it comes to text messages. Or at least it is something you should be giving some thought to.

I worry about it in terms of employers having necessary evidence of performance counseling and correction. Everywhere I go these days I find that a lot of evidence of performance correction is done by text message. This is particularly true of tardiness and failure to meet deadlines.

You find that managers send text messages like

·      “where r u?”

·      "where’s the proposal?

·      “u r late”

·      “customer said yesterday.”

And receive reply texts like

·      “caught in traffic”

·      “due 12 tonight”

·      “Sam came in after me”

·      “thought meant today”

Frequently employers need this kind of documentation to defend against discrimination cases and other employment claims. What happens to these important text messages when the manager no longer works for the employer or has deleted a lot of old messages?

Lawyers of course are suggesting different methods to solve this problem. One attorney suggested that everyone in a company have two smart phones—one for personal messages and one for business messages. His answer was to take everything off the business phones and back them up on a company server.

I don't know if that's a solution being implemented in big corporations but I'm pretty sure I haven't seen the average engineering or sales manager carrying two phones—one of which is continuously backed up to a corporate server.

So here is one idea. Just use one phone. In terms of backup when performance issues arise HR could ask the manager to use an SMS+ backup application and send their text messages to and from the employee to an email account. The manager could send all of these texts to HR. The texts could be printed out and saved by the company for record retention purposes.

Obviously this is not a complete solution. Often not all messages will be captured. Some will be deleted in the course of cleaning up the cell phone or lost to a stolen phone. But it could be a simple method of tracking performance to be used at performance evaluation time and in litigation if it comes to that.