It is generally unheard of for an employer to have to ban employees winking at each other. Rules regarding employee misconduct usually are not that specific.
However, when employees communicate via emojis, an employer might want to make sure everyone is at least on the same page as to emoji etiquette and proper usage. After all, the last thing you want is your HR being overrun because of a kissy face emoji. And yes, emojis are everywhere now. And your younger employees might not realize that their bosses don't take them seriously because of all those silly emojis.
Attorney Jay Holland on recent episode of the Thomson Reuters podcast Legal Current explains the many pitfalls that await companies without employee emoji policies. (Disclosure: Thomson Reuters is FindLaw's parent company.)
Winks, Tongues, and Kisses: Inappropriate Emojis
Okay, so you have a young startup workforce that would rather not work than have to wear button downs and not use emojis. If that's the case, then you need to take action. In addition to having a policy on emoji use, you may want to look into having a custom set of emojis defined for use throughout the company (and leave out the easy to misinterpret emojis, like the winky face, tongue out, kissy face, or racially diverse options).
It's not that some emojis are inappropriate on their own, but the context makes a big difference. Also, if an employee is not fluent in emoji, they might misunderstand what they are saying, or being told/asked, if an emoji is used. Using the wrong emoji could be seen as evidence of a hostile work environment, discrimination, or sexual harassment. As such, if you are going to allow the use of emojis, you may want to have training available to employees on what the emojis mean.
Silly Employer, Emojis Are for Kids
In addition to being misinterpreted, some emojis have different significances in different cultures. Your hands-of-praise emoji in the U.S. is used to offensively dismiss people in China. Same emoji, different meaning.
Basically, emojis are a form of slang, and should be regarded as such. That means formal businesses should prohibit or discourage employees from using emojis for anything official, or when communicating with clients. While it may be okay for a casual, interoffice chat with a colleague about non-work related matters, emojis should be avoided when chatting with laterals, subordinates, and superiors, especially in the legal sector, and when it is work-related.