Employers Beware: Cyber-Bullying Could Wreak Havoc in Your Workplace

October 5, 2012 By Lindsay Schenk
Tennessee Labor and Employment Newsletter

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.[1]  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:

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”).[4]  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:

The General Counsel also deemed some policies addressing cyber-bullying and harassment to be lawful:

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.

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[1]               http://www.workplacebullying.org/multi/pdf/survey_flyer.pdf

[2] http://www.proskauer.com/files/uploads/Documents/Survey-Social-Networks-in-the-Workplace-Around-the-World.pdf

[3]               We know from Blakey v. Continental Airlines, Inc., that harassment occurring via an internet forum provided by an employer may violate Title VII.  This case occurred twelve years ago, long before the social media craze. 

[4]               Don’t have a union?  Yep, it still applies to you.  See 'An Old Law Learns New Tricks: The NLRA's Application to Non-unionized Employers'