What Happens Online, May Not Stay Online: Employers Must Pay Attention!

The electronic world has overtaken our culture, and many studies show that we spend more time on our phones or electronic devices than we spend at work or sleeping.  Daily use of the Internet has increased over the last five years by 75% to 100%. 

Employers should certainly regulate use of the Internet and mobile devices at work, but may think that online activity that happens in the worker’s personal life is not a concern.  Unfortunately, not all personal use of online devices is truly personal, as it may leak into the workplace when it involves employees. 

Cyberbullying has become a major concern.  When the cyberbullying connects back to the workplace, it is as much the employer’s issue as inappropriate behavior between employees off premises.  The employer cannot rely on the “off premises” exception to regulating workplace behavior (PS, there is no “off premises” exception when the conduct or behavior affects the workplace.)

Harassment policies, anti-discrimination policies, and use-of-technology policies should clearly prohibit cyberbullying and online harassment. While no federal law specifically prohibits cyberbullying of employees, Title VII of the Civil Rights Act prohibits an employer from allowing a hostile work environment to exist, where the hostility is based on a protected class. This law would apply to conduct that happens online between employees.

Recent cases include examples of a female supervisor harassing a male subordinate by sending sexually explicit text messages.  In one text, she asked the employee to send back explicit pictures of himself. Those messages, along with other workplace behavior, were enough for the court to find that the plaintiff was subjected to a hostile work environment.  The court was not concerned about the fact that the explicit text messages were sent off premises or after work hours. 

 In another case, an emergency medical technician claimed that threatening Facebook messages sent to her contributed to a retaliatory environment. The plaintiff had complained about sexual harassment, and the offending employee had been fired.  She then received several hostile messages on Facebook. calling her derogatory names, and saying, “I will see you fall you dirty lesbian and every one of you one by one [for] what you did to that man, the one from emergency management. …” When the message was traced back to a computer in the employer’s building, the court said it raised an inference of a violation of Title VII.

Implement a Policy, but Beware of the NLRA!

Employers are almost caught between two federal laws when acting to prevent cyberbullying or cyberharassment. 

As noted in a previous post, the National Labor Relations Board has ruled that many employer policies seeking to prevent workplace cyberbullying could violate Section 7 of the NLRA, which protects an employee’s right to engage in concerted activity, he explained. This restriction applies to all employers, regardless of whether they are unionized.  Employee speech is protected when it addresses working conditions, because workers have the right to engage in concerted activities for mutual aid or protection. For example, while posting someone’s photo online is a common form of cyberabuse, the board has concluded that it is unlawful for an employer to bar employees from taking pictures of co-workers. Policies that govern employee use of the internet are mandatory, but the policies should prohibit abusive behavior without interfering with the employee’s Section 7 rights.

Employer’s To Do List:

1.   Make sure you have a social media policy.
2.  Make sure that online behavior is covered in your anti-harassment policies and training.
3.  Make sure your social media and harassment policies contain an exception for Section 7 rights.
4.  Immediately investigate and take corrective action when you receive a complaint, even if it is about off premises online behavior.