Hiring and the Law — Appropriate Applicant Communications

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: I’ve been communicating with a potential applicant by text message. Is that appropriate?

Answer: In a word – no. All communications that employers have with applicants and employees can have legal implications for the business. Employers have legal obligations to employees and applicants, and one of the best ways to prove that those obligations were satisfied is to have documentation of the exchanges. That documentation should be dated, should use good grammar and punctuation and should be professionally drafted. “C U 2night?” or “LOL-grt resume!” or “When cn u start?” are not the sort of communications you should be having with an employee or applicant and can be an embarrassment, at the least, if you had to present them to a jury.

Putting aside the grammar, punctuation and professionalism arguments (which should be self-evident), employers should keep records of all communications with employees and applicants so that (a) you know what transpired and (b) you can rely on them if needed. How do you get text messages into your personnel or applicant’s file? Many cell phones do not have a mechanism by which to forward the text or get it printed out. But even if they can be printed out or otherwise saved, see professionalism argument, above.

Moreover, a company’s access to its managers’ text messages is only practical as long as those managers are employed—especially as managers often text from their personal cell phones, rather than from equipment provided by the company. What manager do you know is going to print out or otherwise save every text message with an employee? Once a manager is terminated (for whatever reason) those important company communications depart with the manager (and his or her phone). If those communications had been had on the company’s email system, this would not be a problem.

Additionally, with these quick messages, employers often omit important statements that us employment lawyers love to see in communications with employees to protect the business. Or they “forget” to have important communications with the individual at all, such as advising applicants that they are actually hired; putting information in writing that your state may require be provided to applicants and/or new hires; specifying start dates etc.

More often text message fiascos happen when employees are out on leave and are not returning when the employer expects. The quick messages between employer and employee can be convenient—but they provide absolutely no protections to employers if the employee (who was out on disability or pregnancy-related leave) then brings an employment discrimination lawsuit against the employer claiming that the employee was denied reinstatement because of his or her disability/pregnancy.

While it may seem to be a hassle in this day and age to use old-fashioned snail-mail letters or, heaven forbid, a fax machine—at least communicate with employees by email or other messaging system that retains messages and allows easy printing of the communication string. But there are times when snail-mail with official and professional letters printed out on letterhead, and signed by an actual person, is probably the better way to go. If you must – draft the letter; use an electronic signature and email it as a PDF. That can be just as sufficient.

*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.

As the law varies in each area, please check with an attorney to ensure you are applying these tips within the law.

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