Preserving Communications from Workplace Messaging Apps Can Be Critical to a Whistleblower Claim

With each new advance in communications, the legal landscape changes. Where many lawsuits involving improper workplace conduct used to hinge on telephone conversations, now many employees go all day without making or receiving a call. Even email has become outdated in many offices because workers have turned to what are known as ephemeral messaging applications, such as Slack, Signal, WhatsApp, Google Chat and Microsoft Teams.

To confirm the importance of these platforms, the Department of Justice and Federal Trade Commission issued an announcement stating that communications made through these apps must be produced by companies under federal investigation. Employees should also cognizant of the need to preserve these messages, particularly if they indicate some evidence of misconduct on the part of their employer.

The immediacy and informal nature of Slack, Signal and the other programs can make them especially useful for plaintiffs in whistleblower lawsuits. While a supervisor might never consider drafting an email or formal memo about a fraudulent scheme, they could make a reference to it on a Slack channel in between conversations about an upcoming meeting or where the team is heading for happy hour. 

Companies will no longer be able to feign ignorance regarding what was said on messaging apps, and even if they honestly cannot retrieve those communications, they could be sanctioned for spoliation of evidence. As the word “ephemeral” indicates, these messaging apps were not designed for long-term storage or efficient retrieval of old messages, so businesses might have to add a program or devise some other system in order to archive employees’ conversations. 

Filing a whistleblower lawsuit or some other action alleging employment-related misconduct can be a serious challenge. Employers are often very reluctant to give an inch without solid evidence that incriminates them. As this type of evidence is increasingly transmitted through ephemeral messaging apps, more and more cases will turn on something that was said on a Slack or Signal chat, or a team conversation facilitated by Google Chat or Microsoft Teams. 

At Kardell Law Group, we stay current with the latest technology in order to obtain the evidence needed to present the strongest possible case in whistleblower claims, as well as other employment law actions.