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Social Media: The New Harassment Landscape

Social media is changing the landscape of the internal workplace, providing a new way for employees to socialize and interact with one another. The online workplace is rooted in conversation which is casual, revealing and often deeply personal. The direct connection of social media is akin to an invitation into your home. It allows co-workers to share in your personal life with an instant sense of closeness and propels the relationship forward quicker than a traditional office friendship. The boundaries of conduct can become easily blurred and potentially dangerous when this complicated overlapping of private and professional relationships intersect online. Whenever the parameters get ambiguous, the probability of inappropriate behavior occurring increases, creating a growing employer concern for protecting employees from the potential of social media harassment.

Employers need to understand that communications through all means, email, text messaging, instant messaging and social networks should be covered in the company harassment policy. Social media runs a very close second to person-to-person interaction in means of building relationships. Consider some of the most common social networking sites, Facebook, LinkedIn and Twitter. There seems to be little doubt that, when used properly, these platforms have great potential benefit for employers. The unusual point regarding social media is that an employee's virtual comments, even those made in their own time, may constitute actionable harassment in the workplace.

Since Blakely v. Continental Airlines,741 A.2d 538 (N.J. 2000), there has been some debate as what out of work conduct can constitute harassment. In Blakely the Court indicated that a plaintiff can establish an actionable claim for harassment based upon electronic communications made outside the workplace if the electronic medium would be "the equivalent of a bulletin board in the pilot's lounge." Perhaps, in today's market the employee lounge has been replaced by the smartphone and the bulletin board by Twitter. Recently, in Espinoza v. County of Orange, etc. al. No. G043067, 2012 WL 420149 (Cal. App. 2012), the California Court of Appeals upheld a $1.6 million verdict against an employer and in favor of an employee who was being harassed by co-workers on a blog. The employee reported the harassment to his supervisor, who indicated that the complaint would be forwarded through the proper channels, but the employer failed to conduct any official investigation. Ultimately, the Court of Appeals determined it was proper allow the jury to conclude that the employer was liable for harassment arising from a blog maintained by co-workers outside of the workplace because it was aware of the harassment and did not take action.

A recent government study uncovered that 23% of harassment victims were targeted through text messaging, email or other digital forms. Not so long ago, the only evidence human resources had to investigate in harassment claims were the face-to-face comments of the parties involved, making the truth sometimes difficult to determine. With a digital trail of comments to follow, the investigation of harassment claims no longer relies on hearsay, recollection and "he said, she said" testimony, because nothing can refute written proof.

Even though there are pitfalls in allowing employees to use social media in the workplace, there are also very positive effects. Giving employees the ability to interact via social media keeps morale high, and can be a platform for work related resources. The marketing benefits of social media connections alone can outweigh the risks. The main objective of a social media policy should not be to ban social media usage on the job, but to protect itself through clear and concise social media policies. For example, a company's anti-harassment policy should include social media and clearly state that derogatory comments about co-workers are prohibited and should be reported. Employers should offer training, not only to managers and supervisors, but to all employees about what is appropriate for online postings, and what is not. Perhaps most importantly, as illustrated by the Espinoza case, employers have an obligation to investigate complaints and reports of suspect social media abuse just as it would with traditional harassment claims.

Crafting social media policies can be tricky business. Finding the right balance between being overly broad and infringing on worker's rights is a struggle. Recently the National Labor Relations Board (NLRB) found that social media policy of Costco Wholesale Corporation violated Section 7 of the National Labor Relations Act because it too broadly limited employees' on-line comments and conduct. . Complete restriction is not the path to fairness and protection. Rather finding a balance in a carefully worded policy that provides examples and avenues for employees to safely report any suspect activity.

The laws concerning harassment, especially online, are complex due to the intersection of longstanding legal principles and with technological proliferation. The best course of action in a harassment claim will vary greatly depending on the circumstances of the case.

© 2020 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.National Law Review, Volume II, Number 272


About this Author

Benjamin L. Riddle, McBrayer Law Firm, Litigation Attorney

Benjamin L. Riddle  is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm's Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. He graduated from Indiana University's Kelley School of Business in 2000 and obtained his J.D. from Indiana University, Bloomington in 2003. He is a member of the Illinois, Louisville and Kentucky Bar Associations and is admitted to practice in the U.S. District Courts in the Northern District of...