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Emojis: The Latest Thing Employers Need to Worry About

A picture is worth a thousand words and, apparently, so is an emoji. For those unfamiliar with the term, “emojis” are colorful cartoon characters (faces, hearts, animals, etc.) that are used in electronic communications to clarify one’s messages. In her article, “Oxford’s 2015 Word of the Year Is This Emoji,” on, Katy Steinmetz says that, “They act like punctuation, providing cues about how to understand the words that came before them, as an exclamation point might. Emoji typically add to ideas rather than replace words.” Thanks to a recent lawsuit, they also add one more thing employers need to worry about their employees doing that could get them into trouble.

Why worry? Because along with emails, texts, and tweets, emojis are now admissible in court hearings. According to an article on, the attorney for Ross W. Ulbricht, a Californian charged with operating a website where several thousand vendors sold drugs and other illegal goods, persuaded the judge to require prosecutors to include the use of emojis when they read Ulbricht’s electronic communications to the jury. Judge Katherine B. Forrest determined that an emoji was “part of the evidence of the document,” which sets a precedent for other courts to allow their admission. In fact, the United States Supreme Court is currently reviewing a case of a man whose violent electronic threats against his wife were followed by a face sticking its tongue out, which he says proves he was just joking about killing her.

Why does it matter if emojis are admissible in court hearings? One problem with emojis is that they might clarify messages too much. For example, let’s say you have an employee who emails a co-worker this message: “what do you think of the new intern?” The co-worker responds with this message: “she’s fine” and an emoji of a winking face with puckered lips and a heart. The words “she’s fine” are ambiguous; however, with the emoji added, the message now has romantic overtones, which could present a problem when trying to fight a sexual harassment claim.

Would employees really use emojis like the one described above in their business communications? Yes.

Lots of people, including your employees, are using emojis. According to the Oxford Dictionaries team that chose the “Face With Tears of Joy” emoji as the word of the year, “Although emoji have been a staple of texting teens for some time, emoji culture exploded into the global mainstream over the past year.” In his Time Magazine article about emojis, tech writer Robert Hackett says that, “emoji has begun to reshape the language of business.” Indeed, in a recent survey commissioned by Cotap, a mobile messaging company, of 1,000 American workers with smartphones, 76% said they have used emoji in business communication.

Another issue is that even if people know not to put a particular thought into words, they seem to thoughtlessly say the same thing with emojis. In his article, “Emoji-gosh! How emojis in workplace communications can spark a lawsuit (or make it harder to defend one)” on, attorney Peter T. Tschanz says that most employees wouldn’t dream of sending a message that the new intern is attractive, but saying it with emojis is somehow acceptable. Why? “Because many people view this sort of humor as creative and not really inappropriate. It’s just a joke,” according to Tschanz.

So, in light of this recent event, should employers now ban the use of emojis at work? I wouldn’t. Instead, I suggest reminding employees that all of their business correspondence, including emails, texts, tweets, and now emojis, can be used as evidence in court and not to send anything they wouldn’t want a judge and jury to look at. And, if sending this message via electronic communication, leave off the smiley face.

Disclaimer: The information and resources provided herein are not a substitute for experienced legal counsel and does not constitute legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although this information attempts to cover some major recent developments, it is not all-inclusive, and any recommendations are based upon HR best practices and procedures. We recommend you consult an attorney for legal guidance.

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