Keeping Texts and Social Media for Trial

By Drew M. Smith

Social media has become something of a mainstay in today’s society. Whether it is a quick message to your friends or a complete conversation, texting has become the new way to stay connected with people.

In the business world, however, texting and other electronic communications can be a double edged sword. On the one hand they can be used to communicate, send e-mails or other important documents in an instant. On the other, these texts and social media outlets can be distracting, cut into productivity and could lead to a multitude of problems such as lawsuits, terminations, fines and even prosecution.

The issue presented is should companies be required to keep text messages and social media posts as part of their permanent records or should they delete them at regular intervals? In most businesses, like real estate and insurance, the amount of time you have to keep these records vary from state to state. For example, in California, you have to keep the certain business records for up to three years and even seven years before you are allowed to destroy it for auditing purposes. Some records, however, you cannot destroy such as salary changes and performance evaluations.1 In some states, they require you to purge these records after the set amount of time, meaning scrubbing the hard drives and throwing out rolls from copiers.2

But do these laws apply to texts, e-mails and social media? In California, as of January 1st of this year, both real estate and insurance brokers are not required to keep what is termed short-lived social media Electronic Communications (EC) like Twitter, Facebook and text messages. That may be the law but you should have a way to keep these so-called short lived messages.3

There are two reasons as to why you should keep them. One is in the event of a possible criminal or civil investigation, these texts and e-mails can be used as evidence to prosecute anyone found doing anything illegal. The other is that these texts and social posts, independent of criminal prosecution, can also be used as ground for termination of an employee for defaming a company’s position. Similar to Facebook and Twitter, if an employee posts anything derogatory about the company it may be grounds for disciplinary action or termination.

As with anything regarded possible legislation, your attorney is a great resource in developing an outline regarding these short-live EC’s. You should also discuss such a policy with your Human Resources person to make sure your employees understand how to handle social media responsibility.4

1http://blog.ceb.com/2012/04/02/how-long-to-hang-on-to-those-personnel-records/

2http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2014/10/30/save-or-delete-official-email-policies-vary-by-state

3http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_2101-2150/ab_2136_cfa_20140502_160347_asm_comm.html

4https://files.ctctcdn.com/14b0456a001/19922e3c-50a6-4749-8e1b-6f7f4267359e.pdf

About Axis Insurance Services, LLC

Axis Insurance Services, LLC (AIS) is a licensed professional liability insurance broker located in Franklin Lakes, NJ with agents licensed nationwide. They offer access to high-quality insurance products in the areas of Errors and Omissions insurance (E&O), Directors and Officers liability insurance (D&O), Crime, Fiduciary, and Privacy/Network security coverage for today’s professional service firms. AIS works with all company types including commercial real estate firms, real estate agents and brokers, property managers, insurance agents, medical groups, practice managers, third party administrators, lawyers, accountants, architects, engineers and many others.

Axis Insurance Services Inc., is not affiliated with Axis Insurance Company or its subsidiaries or affiliates in any way

For more information visit www.axisins.com or contact:
Mike W. Smith President
Axis Insurance Services
201-847-9175 ext. 105
msmith@axisins.com

Please note that the above information does not constitute any legal advice. You should consult your attorney prior to implementing any employment related policies and procedures for your company

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