The Rise of and Rising Concerns about Business Chat

Business information too easily becomes on-record and public

by Lorrie Ray, Esq.

Many employers have a significant number of employees working from home, performing tasks and connecting with others in ways that were little used prior to March of this year. One popular tool is chat software. Chat software is gaining in popularity each day. Platforms are everywhere. There are two types of platforms discussed in this article. The first is within organizations, and the second is on external websites used by legal, financial, human resources, leadership or others within an organization. 

On its face, a chat tool makes everything a little easier when navigating technology as never before. While using chat may seem like a great way forward, it is wise to take some precautions. The information disclosed in chats may be discoverable in a lawsuit, and suddenly what seemed innocent or a well-intentioned way to connect can become problematic.

Within organizations, there may be a chat option in the phone system. Chat options are also on virtual platforms, such as Zoom and Web-ex. Of course, it is easy for employees to Google “free chat tools” and download them both for work and personal use. Because so many employees are working from home, company laptops and computers may have this software loaded onto them without the employer having any awareness of it. 

Externally, chat is on websites that employees may visit asking for information. Typically, when a website is visited there is a prompt that asks a visitor if they want to chat. While this is intended for simple questions, it is not uncommon for those wanting to know information to divulge details about themselves or their organizations to obtain a more complete answer. There may be a popular list serve on a website visited by employees who are professionally linked to gather information about a specific topic. Those on the list serve may feel comfortable with one another due to their professional connection. This may cause them to lay out in detail complex issues they are dealing with to get advice or opinions from others in the group.

As mentioned above, the contents of both internal and external chats or list serves may be discoverable in a lawsuit about the topics discussed. There are two problems with this discovery. First, it can be challenging to track down all the information. Second, there may be information that a business would have preferred not to release.

Generally speaking, internal chats store a lot of information, and sorting through this would be both time consuming and difficult. To protect against this, organizations should draft clear policies stating that the information on these chat platforms is only informal in nature, and substantive business information is not to be discussed. The policy should explain that this information is not kept confidential, and let employees know that it may be reviewed at any time.

This policy should be in writing and distributed to all employees. For employees working remotely, employers should consider a software such as DocuSign that easily records and saves electronic signatures for employee acknowledgments. This software can also be used for employees to acknowledge receipt of the entire employee handbook. Employers should follow up by checking a list to see to it that all current employees have signed off on this policy, and make sure this is part of the onboarding process for new employees. 

Employers should check to see that employees are following this policy by periodically checking the employer-sanctioned chat platforms to make sure that no substantive issues are being discussed. If there is something substantive, action to stop the chat should be immediate, and the parties to the chat should be told that this behavior is not appropriate and will not be tolerated.

To protect against providing information that an employer would not want others to see, employees looking for assistance on the topic should be advised to be cautious when using external list serves and chats. They should not disclose information that is sensitive for any reason: financial, employment related, or concerning proprietary information regarding the business. Employees should be clearly warned not to ask questions that involve current fact patterns in the workplace. Instead, more general questions without specific facts can be an opening to understanding the topic. And if an employee needs specific legal assistance, he or she should speak directly with an attorney representing the organization so that attorney-client privilege can be claimed.  

Lorrie Ray, Esq., SPHR, is an attorney and the director of member engagement for Employers Council, a member-based association focused on guiding members through their toughest employment law, human resources and workplace challenges. Employers Council has an office located in Scottsdale that supports Arizona businesses. Previous to working at Employers Council, she worked at the U.S. Department of Labor Office of the Solicitor for a little over three years, prosecuting wage and hour cases for the Department.

Ray earned a Bachelor of Science in finance at University of Colorado and earned her law degree at University of Denver.

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