Benjamin L. Riddle of McBrayer, McGinnis, Leslie and Kirkland, PLLC, recently had an article featured in The National Law Review regarding Social Media and Harassment:

A recent government study uncovered that 23% of harassment victims were targeted through text messaging, email or other digital forms. Not so long ago, the only evidence human resources had to investigate in harassment claims were the face-to-face comments of the parties involved, making the truth sometimes difficult to determine.  With a digital trail of comments to follow, the investigation of harassment claims no longer relies on hearsay, recollection and “he said, she said” testimony, because nothing can refute written proof.

Even though there are pitfalls in allowing employees to use social media in the workplace, there are also very positive effects. Giving employees the ability to interact via social media keeps morale high, and can be a platform for work related resources. The marketing benefits of social media connections alone can outweigh the risks. The main objective of a social media policy should not be to ban social media usage on the job, but to protect itself through clear and concise social media policies.  For example, a company’s anti-harassment policy should include social media and clearly state that derogatory comments about co-workers are prohibited  and should be reported. Employers should offer training, not only to managers and supervisors, but to all employees about what is appropriate for online postings, and what is not.  Perhaps most importantly, as illustrated in Espinoza v. County of Orange, etc. al. No. G043067, 2012 WL 420149 (Cal. App. 2012), employers have an obligation to investigate complaints and reports of suspect social media abuse just as it would with traditional harassment claims.

Crafting social media policies can be tricky business. Finding the right balance between being overly broad and infringing on worker’s rights is a struggle. Recently the National Labor Relations Board (NLRB) found that social media policy of Costco Wholesale Corporation violated Section 7 of the National Labor Relations Act because it too broadly limited employees’ on-line comments and conduct.  Complete restriction is not the path to fairness and protection. Rather finding a balance in a carefully worded policy that provides examples and avenues for employees to safely report any suspect activity.

The laws concerning harassment, especially online, are complex due to the intersection of longstanding legal principles and with technological proliferation. The best course of action in a harassment claim will vary greatly depending on the circumstances of the case.

© 2012 by McBrayer, McGinnis, Leslie & Kirkland, PLLC