. . . A Potential Headache for Employers of Younger Workers

Retail, entertainment, hospitality and other industries that traditionally employ large numbers of younger workers may soon get dragged into criminal proceedings because of “sexting” by their younger workers. Florida has joined 20 other states — Alaska, Arkansas, California, Hawaii, Indiana, Iowa, Kansas, Mississippi, Nevada, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, and Guam — which have all enacted similar legislation addressing teen sexting. Because employees frequently transmit these materials using their employer’s networks, criminal prosecutions under these laws may require employers to respond to discovery requests and subpoenas, or permit searches pursuant to warrants obtained by law enforcement authorities, which, in turn, may unexpectedly trigger disciplinary proceedings.

On June 21, 2011, Florida Governor Rick Scott signed into law H.B.75/S.B. 888. Under this law, which will take effect beginning October 1, 2011, a minor (anyone under the age of 18) commits the criminal act of “sexting” if he or she knowingly uses a computer, cell phone, or other transmission device (1) to transmit or distribute to another minor a photograph or video of any person which depicts nudity; or (2) possesses such photograph or video which was transmitted or distributed by another minor, unless the photograph was unsolicited, the minor took reasonable steps to report the photograph or video to their legal guardian, school official, or law enforcement, and the minor did not transmit or distribute the video or photograph to a third party. A minor’s first offense is considered noncriminal and is punishable by 8 hours or community service or a $60 fine. The minor’s second offense is a misdemeanor in the first degree, punishable with imprisonment not to exceed one year or a $1,000 fine; and the minor’s third offense is a felony of third degree, punishable with up to five years’ imprisonment or a $5,000 fine.

Of course, sexting is not only an issue for minors. It is fast becoming an easy and well-utilized mechanism for sexual and other workplace harassment. Accordingly, employers should review and update their anti-harassment policies to include a prohibition of harassment via e-mail, text messaging, or use of social networking sites; and they should review their electronic communications policies to include a prohibition against using any employer-provided electronic device to transmit or retain any sexually suggestive or explicit pictures, texts, videos or any other derogatory material regarding race, ethnicity, age, disability, religion, or any other protected category. Employers should also educate and train employees on the revised policies and continue to enforce all policies in a fair and consistent manner. At the same time, employers should remain mindful of any limitations on such policies (as written or as applied) that may be imposed under the National Labor Relations Act.