Managing Professional Communication in the Modern Workplace Can Be Trickier Than We Think
Most workplace lawsuits today don’t start with a complaint. Long before we hit that turning point, there’s been a screenshot. A screenshot of a late-night DM, group chat tirade, drunk confession, or Slack thread, to name a few. And somehow, people are always shocked when these situations happen and turn into a call to your lawyer. I always tell my clients, friends, colleagues, and kids, for that matter, never to put anything in writing that they wouldn’t want projected on a big screen in front of 12 of their peers. But casual communication is convenient and it’s how people prefer to talk. Most of the time it’s not a problem. Until it is.
People are also surprised to learn that communication and interaction outside of work can become a work problem. While we can’t always control our employees, it’s important to set expectations and boundaries around what is appropriate workplace communication considering how it has evolved. Your team needs to know what conduct is expected and those standards must be consistent and professional, something people can rely upon for their own guidance and with their coworkers.
Today’s workforce spans five generations. The youngest grew up fully immersed in the digital world, where casual communication is the default. Their filters are down and every thought, feeling or idea comes out, often without consideration of how it will land. Then COVID hit. Remote and hybrid work pushed everyone into the same casual channels, and that standard stuck. The result is that workplaces now operate with looser communication norms than ever. That isn’t necessarily a bad thing. We gained efficiency but we also need to look at the grey area and be sure your teams know where this new line exists. While being more open and vulnerable with your coworkers can be a wonderful benefit, not everyone knows where the boundaries currently lie.
We want to be sure that you are aware of the legal risk that most business owners and HR leaders don’t reckon with until a lawsuit shows up. Our goal is for you to understand the exposure and have the tools to manage it.
Casual Communication Is Discoverable Communication
When a harassment, discrimination, retaliation, or wage-and-hour claim lands, one of the first things we review is digital communication. There is always a message history. The @#$%-pic someone thought was funny. The happy hour photo on Instagram. The emoji reaction someone forgot they sent. They can all become evidence in a lawsuit, exhibits that highlight missteps and bad judgment. The thing that sinks employers in litigation is rarely the formal complaint. It’s what they said when they thought no one was looking/listening/recording.
Off-platform messaging makes this harder, not easier. When work conversations move to personal phones, WhatsApp, social media platforms, or texts, they don’t disappear. They just get harder for you to manage and easier for opposing counsel to subpoena. California also has serious privacy rules around employer access to personal devices, which means once they migrate off-platform, your options shrink fast. Keep work conversations on work tools. Mean it. Manage to it.
You May Be Responsible for Employee Conduct Off Work
Many employers don’t realize that their legal exposure doesn’t clock out when employees do. What happens at an after-work happy hour, a personal birthday celebration, or an informal team gathering can land squarely on your desk as an employer. How employees communicate with one another outside of the office can give rise to harassment, discrimination, or hostile work environment claims just as easily as conduct that occurs on company property. Complaints and incident reports stemming from off-hours interactions or employer-sponsored events carry the same legal weight as those arising during the workday, and dismissing them as “not a workplace issue” can be a costly mistake. The safest approach is to take every report seriously, investigate thoroughly, and respond consistently, regardless of where or when the conduct occurred.
Clear Expectations Are Protection for Everyone
Here’s where leadership comes in. The employers we see managing this best aren’t the ones with the strictest rules. They’re the ones whose communication expectations are spelled out. Written, trained on, modeled by leadership, and refreshed regularly. Ambiguity is what creates exposure. Clarity and consistency are what protect against it.
Don’t assume people know what’s appropriate and professional. They don’t. The standards and norms for each generation are different. They don’t always know how to interact with each other and what should never be said. All training is good training and an opportunity to help everyone grow and learn together.
We recommend that employers maintain policies addressing electronic communications, social media, artificial intelligence, security cameras, use of company equipment, business ethics and conduct, and off-duty conduct. Transparency starts at onboarding and is the easiest way to prevent uncomfortable situations. We love when our clients manage ahead of the curve.
Having these policies in your employee handbook and reinforced through training becomes your favorite kind of documentation when a bad actor shows up. CYA can be as simple as reminding your employees that you can see everything: total oversight of their work devices and accounts. But it’s also about using compliance to build culture. We tell our team that if it’s a work device, work account, or work-related communication, make sure your grandma would approve! Kindness on and off the clock.
Putting This Into Practice
Communication has changed. Legal risk has changed with it. The fix isn’t to clamp down or to lecture anyone about how they communicate. It’s to lead with clarity. Write the policy. Run the training. Make the expectations real. Manage to them when things go well, and when they go wrong.
The cost of doing it is a policy and a couple of trainings. The cost of skipping it is a lawsuit you didn’t see coming.
As always, if you’d like help drafting communication policies or running training for your team or your supervisors, we’re happy to help. That’s what we’re here for.
