Electronic Communication: Lost in Translation

April 27, 2021by Matt Kelly

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Corporate America has seen a massive shift to remote work since coronavirus gripped the world. That means much more employee communication is happening in written, electronic form; and many previously in-person interactions now happen in the same way.

For compliance officers, that shift is a mixed blessing.

On one hand, the employee misconduct we’ve come to know and understand over the years is still happening — but like so much else, it’s happening electronically. That poses new challenges for your compliance program.

On the other hand, everything is happening electronically. So, you now have an explosion of records that can help you understand misconduct: exactly what was said or done; which policies or controls were supposed to prevent the misconduct, but didn’t.

So how should compliance officers make sense of this perilous new world of employee communication?

Example one: harassment

Let’s consider the risk of employee harassment. As any compliance officer already knows, harassment is nothing new under the misconduct sun. But in the electronic world, the risk unfolds in different ways.

For example, a senior executive could harass a junior employee by sending an emoji that could be interpreted as suggestive, including a winking face or heart.

Those images can imply meaning when sent by the wrong person — but by themselves, they’re also stripped of context. In person, we’re much better at understanding when someone blowing an air kiss is being funny or too forward. Online, that same imagery requires much more subjective interpretation. If the recipient complains about the message, HR or compliance will need to do much more contextual analysis of other communications to judge the intent of that ambiguous emoji.

Or consider messages sent over the weekend or late at night. Even with no ill intent or awkward emojis included, a natural human impulse is to respond to emails, text messages, and so forth sooner rather than later. Could a senior executive inadvertently browbeat someone — or even violate wage & hour laws — by talking at odd hours?

In some jurisdictions, it can be illegal for managers to send an email or similar messages to employees outside of standard work hours; in many others, it’s just a questionable practice that could lead to burnout. So, what’s the policy response your firm might want to adopt?

Example two: miscommunication

Imagine a group chat happening on Teams, Slack or some other communication tool, and the following conversation happens:

Person 1: “Is this marketing campaign really necessary?”
Person 2: “Who cares? It’s racist.”
Person 3: “No it’s not.”

From that string of text, we can’t answer a simple but critical question: Who is Person 3 answering?

If Person 3 was answering Person 1, it’s a reasonable reply about marketing. If he was answering Person 2, the conversation might devolve into heated discussions about racial insensitivity. In the worst case, this conversation leads to an HR investigation.

This example shows how the limits of technology (slow apps, poor wifi) can inject more miscommunication risk into a group conversation — a risk unlikely to happen if our three persons were sitting in a conference room, using body language, tone of voice, and eye contact to convey meaning.

Those things are stripped away in virtual communication. All we’re left to read is a string of text. Good luck deciphering the meaning of those lines in, say, a deposition nine months later as part of a harassment complaint.

The compliance program response

As always, the first defense against risky employee conduct is training. People need to understand both the risks of deliberate misbehavior (harassing emojis), as well as the risks of innocent missteps that will look worse in hindsight (unclear group chats). Online communication increases both types of risk.

Second, improve your monitoring and surveillance capabilities, to identify and intercept troubling messages more quickly. The sooner the compliance function can flag a potential incident, the more expedient any follow-up investigations will be.

Third, ensure that your investigation protocols allow swift, accurate investigations for the issues that arise. For example, do the HR, legal, and compliance teams know how to investigate complaints of discrimination or harassment competently? Those matters require different procedures than, say, allegations of financial fraud or insider trading.

Fourth, document the findings of investigations thoroughly, to serve as a counterpoint to any disputes that might arise from a manipulative reading of a transcript months or years later. (Draft policies for managers and compliance staffers to that effect, too.)

Communications compliance in a different world

More electronic communication is here to stay, no matter when coronavirus recedes. That’s not the end of the world for compliance; it’s merely a different world, with some risks that are new and others that are old risks manifesting in new ways. Compliance officers need to plan accordingly, with a blend of technology, policy, training and action.

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Matt Kelly
Smarsh Blog

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Smarsh handles information you submit to Smarsh in accordance with its Privacy Policy. By clicking "submit", you consent to Smarsh processing your information and storing it in accordance with the Privacy Policy and agree to receive communications from Smarsh and its third-party partners regarding products and services that may be of interest to you. You may withdraw your consent at any time by emailing privacy@smarsh.com.