Nothing makes the doldrums of the workday pass more quickly than a little excitement, and what’s more exciting than texting sexually explicit hopes and dreams to your significant other?
“I can’t wait to **** your **** in a **** and then **** with your *****,” you type, smirking mischievously. “**** yeah, let’s **** on the roof while *******ing a ****,” they write back, and before you know it, it’s quittin’ time.
But what happens if you get caught sexting at work? After all, you’re not getting paid to take shirtless selfies in the bathroom. We asked experts in both sexting and employment law for the ins and outs of sexting at work.
[Important note: Before getting into it, let’s state right away that any kind of non-consensual sexting is immediately out the window, especially if it’s directed toward a co-worker.]
Do I have the right to privacy?
If it’s your personal phone, you have a legal right to privacy, says Dan Kalish, Managing Partner of HKM Employment Attorneys LLP. “The employer has no legal right to view any text messages between you and someone else,” he says. Emphasis on you owning the phone and paying for that plan because, just as in many of your sexts, there’s a but, with a lot of grey area.
What if my company pays for my phone?
“If the employer owns the phone and pays for the phone plan, it’s possible the employer would have a legal right to view the text messages, depending on the agreement between the employer and employee,” says Kalish. So if you’re elbow deep in a bunch of sexts on the office phone, you’d better read the fine print on your contract.
If said contract explicitly says, “We have the right to all your text messages on our phone,” then the employer will likely be able to get at these text messages. “If not, and there is no agreement, I believe the employer would have no legal right to the private text message… but yeah, there’s a lot more wiggle room.”
Do most companies even have a policy on sexting during work hours?
There’s no statute that explicitly allows an employee to sext at work, but Dan throws a bucket of ice on the whole subject with the reminder that your boss can fire you for “any reason, or no reason, as long as that termination doesn’t violate the law.” Basically, insisting to your boss that, “There’s no law saying I can’t sext in the workplace!” isn’t going to save you.
Even if employers don’t have an explicit rule against sexting, notes Staci McIntosh, a VP for Human Resources on the Vegas Strip, almost all employers do have rules against creating a hostile work environment. “Let’s say you show a coworker your sext, and he finds it amusing,” she says. “Then he goes and tells another coworker about it. That third person accuses your friend of creating a hostile work environment, and — you guessed it — he deflects by blaming the whole thing on you.”
A hostile work environment, by the way, can be defined as pretty much anything that makes your coworkers uncomfortable, especially sexual stuff. It’s broad and vague for a reason, and that reason is so thirsty Doug in accounting keeps to himself.
Can my employer claim it’s affecting my productivity?
Probably. “Yes, what you text on your phone in their office is ‘legally’ your business,” says M. Reese Everson, author of The B.A.B.E.’s Guide to Winning in the Workplace: You Don’t Have to Compromise. “But unless sex or selling sex is a part of your job description, no boss is happy about their employees sexting. Why? It takes away from their productivity, which takes away from the their profit. If an employer is paying you, they’re paying for your work product during your time in their office… for the purpose of you being productive,” she says, adding that, simply put, they can fire you “for not delivering the work product that they’re compensating you for.”
If my response to all of the above is, “Eh, screw it,” where’s the best place for me to sext from?
If it doesn’t affect your productivity, and you don’t tell anyone about it, and your boss doesn’t own your phone, a bathroom stall may, “Very well be the only place in your workplace where you legally have an expectation of privacy,” says McIntosh. “Anywhere else that’s considered remotely public, such as a photocopy room, file storage room or broom closet, you’re putting your entire livelihood at risk, as it’s very possible that you could be caught.” And if you get caught, you’re back to being screwed for creating a hostile work environment.
Does it make any difference if I’m sexting, like, a significant other, rather than random hookups?
No. And while we’re on the subject, let’s not forget about the person on the receiving end of those messages — they are equally at risk of everything discussed above if their phone is company property (or worse, they’re putting on a presentation just as your d*** pic pops up in their chat window).
It’s for this very reason that Eilene Consandine, a writer for McSweeney’s, refrains from sexting at her day job. “At the risk of sounding like a virginal lame-o, I’d rather not be sexted at work,” she says. “Mostly because I’m a brazenly careless employee with an anaemic-at-best work ethic and am always shirking work to stare at my phone. So the chances of me getting caught fielding a schlong shot at my desk are, like, 75 to 90 percent.”
Allie Nordstrom, Sr. Art Director at Venables Bell & Partners in San Francisco, agrees. “Personally, I wouldn’t send risque pics during work, because I’d be too scared that he’d get it while he’s showing someone something on his phone and all the sudden my hoo-ha shows up in everyone’s face in the middle of a meeting,” she says.
And again, it only gets worse if the phone is company property. “I can’t imagine anything more horrifying than Steve, the IT guy, being privy to my clumsy attempts at imitating a XXX_Horny_Sex_Queen_XXX,” Consandine says. Just imagine your phone breaking and having to surrender it to the IT department for several hours. What horrors could they unearth?
I should basically just not sext at work, huh.
Ultimately, the best protection against the negative outcomes of sexting is abstinence. And if you must sext, practice safe sext: Make sure neither party’s phone is owned by their respective company; that said companies do not have explicit rules against sexting; that both parties consent to and are in private spaces when sending and receiving the sexts; and that both parties promise to keep the sexts private.
That’s a lot of hoops to jump through, and it’s entirely up to you and your partner in crime (well, fireable offence, at least) to decide if the whole thing’s even worth it.