By Alison Cain and Katherine O’Brien
With the advent of such technologies as e-mail, text messaging, and social networking sites, the place for gossip and harassment in the workplace has moved beyond the “water cooler” and, in some cases, beyond the current employment regulations and laws. Employers may not think that they have to worry about employees harassing one another on the Internet via social networking sites, since the harassment may take place outside of the workplace on personal equipment. However, “what happens on the social Web site will always surface at the workplace.” Harassing and inappropriate comments between employees are issues the employer has to deal with, regardless of where they take place, because they will seep into the workplace and may lead to potential lawsuits.
New technologies are leading to a re-definition and virtual expansion of the workplace. Thus, employers must expand their awareness of what is considered “work-related,” as the four corners of an office are no longer the limits for employer liability. This article focuses on these new “water coolers.” This article discusses social networking sites and their potential to become the new forum for workplace harassment. After a brief description of social networking sites the discussion turns to how these sites can be used for harassment, as well as, the potential liability an employer may face for what his employees do on the social networking sites. Finally, a brief discussion on what employers should do in order to protect themselves and their companies from liability and litigation resulting from Internet harassment on social networking sites. The article concludes with a few suggestions for what an employer should include in its Internet use policy and how an employer can actively monitor its employees while still taking advantage of the advances in technology.
Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act of 1990 (ADA). Harassment is unwelcome conduct that is based on race, color, sex, religion, national origin, disability, and/or age. Sexual harassment is a specific form of discrimination that violates Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.
When that harassment occurs in the workplace or, in some cases, is related to the employment relationship, the employer may also be held liable. However, with advances in technology, the traditional definition of “workplace” has expanded, along with employer liability. Employers used to be primarily concerned with what employees said to each other around the “water cooler,” now that water cooler is a publicly available website that anyone with Internet access can view, turning one instance of harassment potentially into many.
Generally, employers are liable for harassment claims in two situations: (1) if a supervisor harasses an employee or (2) if a co-worker is the harasser. Employers have a duty to create a safe and non-hostile workplace for their employees and thus have a duty to prevent harassment through policies, training and monitoring the workplace. Thus, employers’ responsibility is also dependent upon whether they knew or should have known about the harassment and took the necessary action to prevent it. Harassment becomes unlawful where (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Harassing behavior that occurs at work is obviously a problem, but with the expansion of the work place through new technologies the definition of “at work” has changed. The “when” and “where” of harassment to determine if it is work-related has become a more difficult and fluid concept that the courts must struggle with.
Employers generally have policies enforced against harassment in the workplace, but liability may extend anywhere employees are for work-related purposes. A sufficient connection between the harassing conduct and the employment relationship is all that is required to potentially find the employer liable. Instances of work-relatedness have come into question at work-related functions, such as office parties occurring out of the work place, business retreats, work-related conferences, and even text messaging on company phones that double as an employee’s personal phone.
As a result of the proliferation of communication platforms the potential for employer liability is increasing for the actions of their employees, even when distinctly outside of the workplace. Such derogatory or discriminatory remarks made off-duty can be used as evidence to support claims. For example, the court in Blakey v. Continental Airlines, Inc., asserted that blogs or “computer bulletin boards” can be equated as an extension of the workplace, thus any illegal activity on this extended work station can be attributable back to the employer. Because employers have a legitimate business interest in protecting the reputation of the company and providing a safe work environment they can threaten adverse employment action on the offending employee and hope that the situation is remedied. Or, because of the at-will employment doctrine they can simply terminate the offender for their off duty conduct.
There have been several interesting cases regarding at-will employees being terminated for lawful activities done during non-work hours based on the duty of loyalty doctrine. Heather Armstrong was one of the first people fired from her job after posting work-related comments on her personal blog, “dooce.com.” A flight attendant for Delta Air Lines posted provocative pictures of herself in her uniform on an empty Delta airplane. A professor at Boston University’s College of Communication was also terminated for describing one of his students as “incredibly hot” on a public website.
While working for Microsoft, Michael Hanscom noticed a shipment of Apple computers being delivered to Microsoft. Microsoft and Apple are competitors and Hanscom found the situation humorous and posted on his personal blog pictures he took of the delivery. When Microsoft discovered the pictures and personal commentary regarding the situation he was terminated for reasons of violating employee duty of loyalty. In Marsh v. Delta Air Lines, Inc., Delta fired employee Marsh (a baggage handler) who wrote a letter to a newspaper criticizing the airline. Marsh filed a wrongful discharge case and lost despite the fact that the activity (writing of the letter) was done during non working hours. The court reasoned that the letter “breached the bona fide occupational requirements of an implied duty of loyalty.”
These examples demonstrate how employers have taken action upon employees based on their online activities. If an employee can be held accountable for their online activities even during non working hours, it is also plausible that an employer may be responsible for the employee’s online actions as well.
In today’s modern workplace-which has expanded from the traditional four corner office to anywhere a Wi-Fi signal can be received; employers must protect their employees from such activities like harassment, even during non working hours and away from the office. Blogging can be more dangerous for employers than e-mail because it has the potential to reach a wide audience, whereas e-mail which must have an intended recipient. E-mail can be considered more personally offensive and intrusive, but a blog can “intensify illegal activity” by being seen by millions worldwide. For these reasons and many more not discussed here, employers must not only look to what’s written on the bathroom wall, but must also seek out what’s posted on other new and potentially dangerous Internet “Walls.”
The Internet allows users to provide information to one another over a worldwide connection. Social networking sites are part of this web-based world. There is generally only the cost to connect to the Internet, but no cost to sign up for most social networking sites. Before one can understand that social network sites might lead to a new realm of harassment litigation it is important to understand what a social network site (SNS) (also referred to as social networking site) is. Social network sites are web-based services that allow individuals to (1) construct a public or semi-public profile within a bounded system, (2) articulate a list of other users with whom they share a connection, and (3) view and traverse their list of connections and those made by others within the system. The nature and nomenclature of these connections may vary from site to site.
One way a user is able to find other users, and see their profiles, is by being in the same Network as another user. Being in the same network usually allows those users to view each other’s profiles and join the groups within that network. Networks are based on geographical areas, employers, and schools. Facebook began having employer and work-related networks in May 2006. Facebook also has a “Groups” application that allows users to join, create, browse and search Groups, which can be either open or closed. This means that Groups can allow anyone to join and to see their information (open) or they can require that users be “invited” or approved to join the group by its administrators (closed).
In May 2006 Facebook had over 1000 work networks. Employers and companies who do not have a Facebook network can easily start a company Group and invite its employees, and potential employees, to view its page. Employees can also create groups that are network specific and therefore only members of the work network would have access to join the group. Each Group’s page also has its own Wall where group members can post anything about group members or non-group members. Facebook intends to become “the main tool people use to communicate for work and pleasure.” Employers may be using Facebook and other social networking sites to their benefit by increasing communication, but these sites may also present obstacles leading to litigation. If employees use company resources to harass an individual via a social networking site the company could be held liable. Therefore, there is a possibility of employment litigation based on employees and employers harassing one another via social networking sites.
Many may think that social networking sites, like Facebook, and blogs are used only by young adults; however, in 2007 the median age of people using the Internet for social networking type activities was thirty-eight. Even, large and small business now create their own profiles on social networking sites, just like individuals. Even without company approval an employee or group of employees may create blogs or an unofficial group for the company. Employees need to be careful what they post about their company on the Internet because courts have held that “employees who blog about their companies run the risk of their speech being deemed a violation of the duty of loyalty.”
Employers also need to be aware of cyber bullying, an “action or behavior on the Internet intended to hurt or harass another person.” Cyber bullying can “include threats, sexual remarks, and hate speech,” and may also be known as cyber stalking. Cyber bullying does not always have to be directed toward the victim, it can include indirect postings as well. Cyber bullying has mostly focused on harassment among teens, but harassment on the Internet can occur among adults as well. One famous case of cyber bullying involved an adult harassing a thirteen year old girl, Megan Meir, on MySpace. This case shows that even adults are utilizing social networking sites to harass others. Employers have to be aware that although the discussion of cyber bullying has focused on kids and teenagers up until this point, adults (i.e. employees) are also participating in this kind of harassment.
Employees also have to be aware of their own actions. Employees may post things about their co-workers and supervisors that they would never say out loud in the workplace. “Employees need to understand that discriminatory or harassing blog or web entries that they make regarding co-workers may well be considered in the same vein as if they actually made those comments verbally in the workplace.” Disgruntled employees use cyber smearing (similar to defamation) increasingly to hurt their employer (or ex-employer) and can reach a huge audience with just one posting. Employees need to be wary of whether what they are doing is prohibited by an employer’s policy. Something an employee does on the Internet could lead to “hostile work environment, discrimination, or defamation” issues if the action is considered to be done with in “part of the workplace.”
Employers need to be aware of employees’ actions on the Internet since there may be issues of vicarious liability for things they knew or should have known about. In Blakey v. Continental Airlines, Inc. co-workers posted harassing, false, and defamatory statements about the plaintiff on Continental’s “on-line computer bulletin board called the Crew Members’ Forum.” The court found that just because the harassing remarks were posted by employees on the Internet Forum and not necessarily made at the physical workplace the airline might still be liable and have a duty to stop that harassment. The court further recognized that multiple Circuit Courts have held an employer can be liable for co-workers’ harassment.
The critical issue in Blakey was whether the forum was considered public or part of the workplace. If the site is considered to be a part of the workplace then “the company has a duty to monitor it and take corrective action if an employee is harassed on the site.” This type of situation could easily arise on Facebook. The court would be faced with deciding whether or not a company sponsored Network or Group was sufficiently related to the workplace to hold an employer liable for postings on it. The court would be faced with another problematic situation if an employee’s personal blog or Facebook page was used to post harassing comments about co-workers. Personal webpages, with no affiliation to work, would probably not be considered sufficiently related to the workplace to hold the employer liable, but the employee could still face personal liability. However, if it could be shown that the employer was aware of the harassment and did nothing to stop it, even if on a personal webpage, a court may find the employer should have done more to stop the harassment and therefore find the employer liable.
Taking affirmative action to monitor their employees’ use of e-mail and the Internet is an important step every company should take. Usually, an employee, in most situations, has no reasonable expectation of privacy from his employer. This is especially true if, at the time of hiring, the employer had an effective monitoring policy that was made known to the employee. However, in certain instances an employee’s actions may be protected. It is important to be wary of whether or not the actions, while critical of the employer, are protected by other laws, such as the First Amendment or labor laws. Certain states have laws that protect employees’ activities outside of work. While the laws “usually contain exceptions for behaviors that have an impact on the employer . . . they must be considered when an employer considers regulating off-duty behavior.” Regardless of the laws in place it is important that an employer create an Internet and e-mail use policy that is put in writing and, when possible, he should get written confirmation from each employee that they have received and read the policy.
Employers need to safeguard themselves from the litigation and the possible liability that may arise from harassment occurring on social networking sites and other Internet-based communications. Employers need to look at ways to protect themselves and their employees when other employees post comments on social networking sites (like MySpace and Facebook) or on their personal blogs. Employers have a duty to try to stop “harassing or offensive” behavior directed at a protected class, and to prevent Internet resources at work from being used to “defame, disparage, threaten or otherwise harm others.” Even if the employer is not ultimately liable for the harassment because it is disconnected enough from the employment the employer should still be careful to prevent future litigation in which it might be held liable.
Companies and other workplaces also need to worry about their own reputation and what they are posting (or supposedly posting) on social network sites. It is important to determine whether there are sites or blogs about your company on the Internet of which you are unaware. If something negative is found, contact the poster and ask that the negative or false posting be removed. If contacting the poster(s) is unsuccessful one should try contacting the site directly to have the information removed. The harsh reality is that the Internet can be a host for “unreliable, inaccurate, and harmful communications that can invade individual’s privacy and destroy the confidentiality of personal and corporate information.”
Employers should also be wary of their company’s use of social network sites, and employers should use caution if they decide to create a work group on Facebook. They should also think carefully about whether that group is open or closed and whether, the group is official, and there should be monitoring of the group to further guard against potential litigation.
Employers need to try to avoid issues that will lead to litigation in order to prevent the problems from arising. These problems include general harassment problems among employees and possible public relations issues. Employers need to ensure that supervisors and other employees understand the risks that may arise from being “friends” with another employee on a social networking site. Prevention can only come from employers implementing policies that will encompass all Internet-based activities. Such policies should include “an anti-harassment and anti-discrimination policy that encompasses such behavior, a workplace violence policy written broadly enough to capture Web activities, and proper training for supervisors.” Employees need to be made aware that an employer will not stand for harassment of any kind via electronic communications.
It is up to the employer what exactly he wants to include in this policy; however, certain topics should definitely be discussed. An employer should clearly state that use of the blogs, social networking sites, or other Internet communication devices to harass other employees is strictly prohibited. The employer should emphasize that this prohibition includes employees’ use of Internet sites outside of the workplace if the site is sufficiently connected to the workplace. An employer needs to make it clear that an employee found to be harassing co-workers via the Internet can still be discharged and possibly held legally liable for his actions, regardless of whether the harassment took place in the workplace or at home.
If a company chooses to utilize a blog or social networking site then the company must initiate strict monitoring of the site and make all employees aware of the monitoring and the company’s policy that improper use of the site in or out of the workplace will not be tolerated. A company may also want to include in its policy that any unauthorized use of the company’s likeness or logo on an individual’s blog or social networking site will not be tolerated. This will help avoid liability if an unauthorized site is used for harassing purposes.
Policies also need to address employers’ current concerns while, at the same time, being aware that an Internet policy that is too specific can become quickly outdated. The Internet is an ever-changing forum; therefore, employers’ policies need to be easily adaptable without having to be constantly re-written. Companies may find it helpful to reach out and create a network of “employers and legal advisors for guidance” as they try to create their policy. It is also extremely important that in addition to having policies in place, the policies are continuously enforced and reiterated through meetings, trainings, and written memorandum.
The Internet is an ever-changing place with constant updates and new websites to attract one’s attention. Social networking sites have become a popular sensation and employers need to be aware that the risk for potential problems is out there. Monitoring and clear policies are key to preventing issues that could lead to liability. It is important to remember that what an employee “says” on the Internet can be taken exactly the same way as if the employee said it around the water cooler, except it cannot be denied as easily.Employers have to be aware of what their employees are doing and how it might be connected to their employment. Having a strict policy forbidding harassment via the Internet and constant monitoring are steps in the right direction. Some legislatures have begun to take those steps, but a more uniform approach may be necessary to tackle harassment on such an expansive forum like the world-wide-web. In the meantime, employers be warned!
For more information, contact Leeds Brown Law, PC at 1-800-585-4658
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