How much do an employer’s obligations to prevent and remedy workplace harassment extend into the virtual world? Does an employer have the same or different obligations to address an employee’s concerns regarding an unwelcome picture posted on Instagram or a sexually inappropriate “tweet” by a co-worker on their own time and on their private social media channels?
The laws concerning social media and harassment are complex and evolving, with new trends consistently appearing. The first step for employers is to recognize that there is a serious and prevalent potential for actionable workplace harassment on social media. So, how should employers approach social media and harassment in this evolving environment?
Controversy over an employer’s ability to institute and enforce social media policies in the workplace has been particularly prevalent before the National Labor Relations Board (“NLRB”). The NLRB has actively scrutinized and stricken down employers’ social media policies as being overbroad and having the effect of “chilling” employees’ rights to engage in activity protected by the National Labor Relations Act. In this context, employers face a constant struggle to develop sufficiently narrow policies and procedures while maintaining flexibility to address workplace-related concerns, including harassment on social media.
In addition, numerous states have enacted laws prohibiting employers from accessing employees’ social media accounts or requesting that the employer be provided access. Although, generally speaking, employees do not have a right to privacy in their work-related documents, electronic information, and electronic communications and devices, this does not necessarily include social media websites. Employers thus face challenges in that these privacy laws may restrict employers from being able to conduct the same type of prompt and thorough investigation into workplace harassment claims that they might otherwise conduct when social media accounts are not involved.
Although the law surrounding social media is constantly changing, there are a few concrete actions employers can take so as to reduce their liability related to social media harassment:
Implement a clear and specific social media policy. To start, employers should implement a social media policy and, if they have not already done so, an internet and electronic communications usage and monitoring policy. An employer’s social media policy should be clear and specific, including providing specific examples of prohibited conduct, such as using social media to harass co-workers, and cautioning employees that they may be disciplined for engaging in harassing, intimidating, or unlawful conduct towards co-workers on any social media tools. An electronic communications policy should also establish the employer’s right to access any content on its own technology systems, so that if the alleged harassment occurs on a company device, the employer will have the right to access it and use the information as grounds for taking action without having to place as much weight on privacy concerns.
Treat social media harassment like other harassment. Employers should also treat all potentially harassing conduct similarly, whether it be face-to-face or through a digital medium, by applying a uniform anti-harassment policy. An anti-harassment policy should include references to social media-related conduct and should ensure that a full investigation will be conducted whether or not the conduct was through a social media platform. Employers should conduct a standard harassment investigation as they would in any other non-virtual harassment context. Although employers should be mindful of state privacy laws, they should also be aware that most of the new laws have carved out exceptions for unlawful conduct such as trade secret violations, discrimination, and harassment.
An employer cannot always control their employee’s actions on social media. Still, employers may discipline an employee for posting, sending, or tweeting inappropriate messages that are harassing or otherwise may lead to a hostile work environment.
In the end, the most prudent actions concerning social media harassment will vary and should be approached on a case-by-case basis, and employers must remain vigilant and work closely with their employment counsel so as to stay ahead of the evolving legal landscape.
BakerHostetler is here to help.