Social media and blogs have become popular forums for bullying and harassment. Unfortunately, it is easy to see why – cyber-bullying is easier than traditional bullying. Cyber-bullies have the benefit of anonymity, lack of face to face confrontation, and widespread, instantaneous impact. Further exacerbating the problem, tweets and facebook posts are permanent, often made without reflection, and easily misinterpreted: big drama in a small package. What does all this have to do with you, as the employer? Social media has changed the landscape of the workplace – cyber-bullying among your employees could lead to Title VII harassment claims against your business.
Bullying doesn’t just exist on playgrounds. Thirty-five percent of adults in the US report being bullied at work – approximately 54 million workers. This is a scary number when you consider that cyber-bullying is a relatively new phenomenon in the workplace. Bullying causes increased absenteeism, lower productivity, and greater job turnover. Thus, even if you did not face liability for unchecked cyber-bullying in the workplace, it makes good business sense to take measures to prevent bullying.
So, how might cyber-bullying become a liability in your workplace? Imagine a situation where a disabled employee reports his co-workers’ misconduct. Another employee creates a blog while off-duty and on his personal computer. Employees post derogatory comments about their disabled co-worker who reported the misconduct – calling him the “Rat.” The disabled employee was born with a disfigured right hand that he self-consciously keeps hidden in his pocket. Blog posts refer to the employee’s right hand as “the claw” and one blogger promises to pay $100 to anyone who obtains a photograph of “the claw.” The posts grow increasingly vulgar (and inappropriate for this article) as time passes. Not surprisingly, the cyber-bullying and harassment spread from the blog to the workplace. The harassed employee informs his superiors multiple times but they take little action to stop the harassment. Unfortunately, this is not a made up scenario – but the facts of a true story where there was no happy ending. In Espinoza v. County of Orange, GO43067, 2012 WL 420149 (Cal. Ct. App. Feb. 9, 2012), the employer was found liable for having knowledge of the harassment but failing to take corrective action. This case is a red flag to employers.
Employers cannot ignore the impact social media has on their businesses with respect to cyber-bullying and harassment. While the workplace has not been extended to include personal use of social media on non-company computers or smartphones while off-duty, once any portion of “personal” use spills over into the workplace, it becomes the problem of the employer. For example:
- Facebook posts, blog posts or tweets made by one employee about another, upon which other employees post comments or tweets, could easily escalate to harassment and spread to the workplace.
- Forty-eight percent of businesses permit employees to access social media for personal use on employer computers while at work. Harassment via social media using employer resources at work narrows the gap between “personal” and “work-related.”
- The gap between “personal” and “work-related” narrows even more when company-sponsored social media becomes a medium for harassment. Employers are likely to face liability for harassment that it facilitated by creating its own twitter account, blog, or facebook page, group or network.
What is an employer to do? Polices designed to prevent bullying and harassment on social media are a great start – but be careful when drafting those policies. The recent National Labor Relations Board (“NLRB”) Acting General Counsel’s Memorandum on Social Media Policies demonstrates that policies must be carefully crafted to avoid running afoul of the (“NLRA”). Policy language violates the NLRA if employees could interpret it as chilling the exercise of rights protected by the NLRA, for example employees’ right to share and discuss their terms and conditions of employment with both co-workers and outsiders alike. If a policy rule is ambiguous as to whether it would chill the exercise of these rights, then the policy or rule is overbroad and unlawful. To avoid this, include limiting language clarifying that the rule does not restrict NLRA rights. A general savings clause elsewhere in the policy stating that the policy does not restrict rights protected by the NLRA is insufficient. Instead, the limiting or clarifying language must relate specifically to the particular policy or rule. The General Counsel suggests clarifying the scope of a particular rule in the policy by including examples of conduct that would violate the policy (but not restrict NLRA protected-activity). Examples of unlawful policies maintained by businesses to prevent cyber-bullying and harassment include:
- Social media policies that prohibit employees from making “offensive, demeaning, abusing or inappropriate remarks” online because such a policy could be interpreted to prohibit “protected criticisms of the Employer’s labor policies or treatment of employees.”
- Social media policies that instruct employees not to “pick fights,” to avoid “topics that might be considered objectionable or inflammatory—such as politics and religion,” or to “communicate in a professional tone” when engaging online because these instructions could discourage discussions of working conditions or unionism.
- Social media policies that instruct employees to “report any unusual or inappropriate internal social media activity” because it could potentially “discourage employees from engaging in protected activities.” Nor can a policy instruct employees to report “unsolicited or inappropriate communications from persons within or outside” the company.
The General Counsel also deemed some policies addressing cyber-bullying and harassment to be lawful:
- Social media policies that prohibit employees from engaging in “harassment, bullying, discrimination, or retaliation of co-workers that would not be permissible in the workplace . . . even if these actions are taken after hours, from home and on home computers.”
- Social Media policies can also state: “[I]f you decide to post work-related complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.”
- “Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.”
Employers can and should take steps to limit the negative impact of cyber-bullying – from reduced productivity to harassment – on the workplace. Those steps should be taken, however, with great care to avoid violating the NLRA.