In this episode, Baker Howry and Shannon Wright cover the rise of emojis, texts, and other modern modes of communication within the workplace and how these new communication styles are being interpreted by the courts. This interview follows an earlier article published on this topic.

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Our Host:
Courtney White Research Attorney, Dallas & Houston Follow on LinkedIn » Instagram: @courthousecouture
Episode Guests:
Baker Howry Associate, Houston Follow on LinkedIn »		Shannon Wright Associate, Houston Follow on LinkedIn »

Episode Transcription

Courtney White: Hi, everyone. I am Courtney White, and this is Jackson Walker Fast Takes. Today’s workforce can include members of up to five different generations, and each generation communicates differently. Some generations are more comfortable with personal interaction, and other generations fully embrace technology. Being cognizant of these differences provides an opportunity to increase connection among generations, have greater satisfaction of employees, and may result in better communication in court. I have invited two of my colleagues, Shannon Wright and Baker Howry, two litigation associates in our Houston office, to the podcast to discuss these differences and some possible solutions.

Shannon and Baker, I’m excited about our discussion today. I’m just going to go in with my first question: What are the five generations that are currently in the workforce?

Shannon Wright: Thanks, Courtney. We’re in a really unique situation here. Because people are living longer and working longer, we have more generations actively in the workforce than we’ve maybe ever had before. So, the most senior of those generations is often known as the “Silent Generation.” They are 2% of the workforce currently. They were born between the years 1925 and 1945, and their lives were shaped by things like the Great Depression and World War II. The next generation is the Baby Boomers; they are 25% of the current workforce. They were born between the years 1946 and 1964, and their lives were shaped by the Vietnam War, the Civil Rights Movement, and the Watergate scandal.

Baker Howry: The next generation is Generation X, which accounts for about 33% of the workforce. This generation was born between 1965 and 1980. The major events that shaped their lives were the AIDS epidemic and the fall of the Berlin Wall. Next, we have Millennials, which account for about 35% of the workforce. That generation was born between 1981 and 1996, and their lives were shaped by Columbine, 9/11, and the rise of the Internet. And finally, we have the Gen Z generation that currently accounts for about 5% of the workforce, but it’s expected to be about 30% of the workforce by 2030. This generation was born from 1997 on, and the major events that shaped their lives for the Great Recession, school shootings, social media, and COVID-19.

Courtney White: I would love to know how these different generations communicate differently and what problems or challenges you see in the workplace because of the differences in their preferred communication style.

Shannon Wright: Well, each generation’s preferred communication style was shaped by the types of technology that were available when they were growing up. So, for example, the Silent Generation, between 1925 and 1945 is when they were born, their preferred communication style is going to involve a personal touch. So, it might be something like a handwritten note. Whereas when you get to Generation X, born between 1965 and 1980, their preferred communication style is about efficiency. So, it might be phone calls or a face-to-face meeting. This is the generation that might get frustrated by an endless string of emails when they think, ‘I could have just picked up the phone and had the answer in two minutes.’ And then finally getting to Generation Z. They grew up with IMs and text messages and social media, and they are much more comfortable using those forms of communication than maybe older generations would.

Baker Howry: Yeah, so for example, if a Baby Boomer or Silent Generation colleague sent their Gen Z colleague an email and ended it with a period, that Gen Z colleague might interpret that period as they’re mad at them, angry, cold or passive aggressive, because they grew up in an era where they’re text messaging and don’t often use punctuation and text messages.

Courtney White: This is absolutely fascinating. I know if these generational differences show up in the workplace, they likely show up in court, as well. Can you all share some examples about how these generational differences have impacted our court system?

Shannon Wright: Absolutely. So, there’s a professor named Eric Goldman. He’s out in California, and he tracks these statistics of how emojis and emoticons show up in court opinions, how often, how the courts deal with them, what types of cases.

For those who aren’t familiar, emoticons may be a term that’s not as recognizable for everyone, but if you think of typing a colon and a closed parenthesis to make a smiley face, that’s an emoticon. If you do that now on your phone, it’s going to create an emoji, a pictorial display of a smiley face. Before phones could do that, early cell phones before iPhone, for example, you would type in the emoticon.

So, in Professor Goldman’s statistics in 2014, there was one case across the entire U.S. that referenced an emoji. But by 2021, you have 154 cases across the country, where courts are looking at emojis. Employment discrimination is the second most common type of case in which emojis come up. Emojis come up in the form of text messages, social media, email. You’ll notice, for example, text messages and social media typically aren’t a sanctioned way of communication in the workspace, but employees are frequently using these to communicate with their colleagues. So, even though they might have access to email or Teams, they might send a quick text message or direct message on Facebook to get a message to a colleague.

Baker Howry: Yeah, and so when courts are interpreting these emojis, they do three things:

• They first look to the surrounding circumstances;
• They analyze the accompanying text with the emoji or emoticon; and
• They ask whether the emoji or emoticon materially alters the message’s intended meaning.

For example, in Lightstone v. Zinntex, which is a New York case, the court held that a thumbs-up emoji (👍) did not show someone agree to an executory accord. You really don’t want a court interpretation of your contract based on an emoji or what they think an emoji means. So, it’s really important to be aware of the use of these emojis when you’re communicating, because they could have legal implications.

Courtney White: Thank you, guys, for explaining that. I’d love to know some takeaways that you can think about in regard to our communication moving forward.

Baker Howry: It’s really important to keep in mind that emojis are not a universal language. So, they’re going to have completely different meanings based on age, culture, socioeconomic status, nationality, education. It’s not going to mean the same thing to you as it does to the person next to you. It’s also important to keep in mind the differences and competing platforms such as Apple and Samsung. Their emojis are going to look different and might have different meanings.

Shannon Wright: To piggyback off of what Baker said, this means that it’s really important for employers to understand new technology and new modes of communication and how their employees are or might be using those modes of communication. They need to also provide robust training for their employees to be able to effectively communicate across generations, so that the meaning of a colleague’s communication doesn’t get lost in translation when going from, say, a supervisor to an employee. Finally, it’s very important to work with competent legal counsel who can advise you about the benefits and the risks of various modes of communication, as well as best practices to reduce your exposure to potential litigation stemming from miscommunication. For example, if you don’t have a retention policy or don’t know your retention policy for your Teams messages, that’s something that you should be working with outside counsel on to determine what is the best retention policy to protect your business from any potential litigation.

Courtney White: This is a really interesting podcast episode. Shannon and Baker, thank you for joining the JW podcast today.

For additional JW Fast Takes podcasts and webinars, visit JW.com/Fast. Follow Jackson Walker LLP on LinkedIn, Twitter, Facebook, and Instagram.

The music is by Eve Searls.

The opinions expressed do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.

Meet Baker

Baker Howry is an attorney in the Houston Trial & Appellate Litigation practice. She assists clients on complex commercial litigation issues as well as white collar defense involving healthcare fraud and abuse. In 2020 and 2021, she served as a summer associate at the firm, preparing memoranda involving CERCLA lessee liability and real estate foreclosure and working on internal contract documents regarding nurse practitioners and physician assistants. Prior to Jackson Walker, Baker worked in the Government Affairs office of the American Dental Association as the Lead Project Assistant for the Regulatory and Congressional Affairs team and as the ADPAC Senior Project Assistant.

Meet Shannon

Shannon M. Wright is an attorney in the Houston Trial & Appellate Litigation practice. She assists businesses in resolving commercial disputes including breach of contract, breach of fiduciary duty, fraud, and negligence. During her time as a summer associate at the firm, Shannon handled research and analysis for various stages of commercial litigation in cases involving liability for injuries to independent contractors, UDJA, adverse possession, discrimination/retaliation, and service mark infringement. She also served as a judicial intern for federal judges Alfred H. Bennett (Southern District of Texas) and Gregg J. Costa (Fifth Circuit Court of Appeals) in 2020.