As we conclude this 50 For 50 series, we look to the future of employment law. As we see it, the biggest change in the workplace has been the emergence of social media. According to recent surveys, nearly three-quarters of American adults use social media at work and one-third of those surveyed would refuse a job offer if they knew social media sites would be blocked at work.
The prevalence of social media raises the obvious question: how will it affect employment discrimination law in the future? To be sure, most employers want to create a collegial atmosphere for their employees. While frequent socializing may be inappropriate when it interferes with work, a little socializing can make for a better and more productive workplace. To that end, it is not uncommon to see e-mails floating around the work place that are unprofessional, but what can an employer do when an email or a social media comment amounts to harassment or discrimination? Co-workers who become “friends” on Facebook or other social media cites may initially feel closer to their cohorts, but becoming friends online can easily lead blurred lines and inappropriate behavior, which may then seep into your business just as quickly and cause chaos.
These blurred lines may also lead to a harassment or discrimination suit. In 2012, a California court also found an employer could be held liable for outside electronic communications in Espinoza v. County of Orange. In Espinoza, the plaintiff, who had no fingers on his right hand, worked for the Orange County Probation Department. He was generally able to function, although he could not perform some tasks such as holding a knife or fork with that hand. He was self-conscious about people seeing it and often kept his hand in his pocket. A person who was not an employee of the defendant started an outside blog and there were repeated comments in reference to plaintiff’s hand, one example being, “I will give anyone 100 bucks if you get a picture of the claw. Just take your hand out of your pocket already!!!!!!!!!!!!!!” Plaintiff told his employer that after the blog came out, several co-workers started to mock his hand while at work. He eventually left his job, filing a claim against defendant for discrimination based on harassment and discrimination.
A jury awarded the plaintiff a $820,000 verdict in monetary damages for medical expenses, lost earnings, and mental distress, against the employer. On appeal, the court upheld the verdict. It stated that, although the actual blog posting took place outside of the workplace, “employers do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the workplace and in settings that are related to the workplace.”
The best way for an employer to avoid these types of suits is to create a social media policy. These policies should walk the line between putting employees on notice that they cannot post things online that are demeaning, hurtful or discriminatory related to the company, co-workers, clients, or independent contractor – while also recognizing that the National Labor Relations Act limits an employer’s ability to restrict certain types of speech online. Complete restriction of online communication is not an option.
And most importantly, when an employer learns of discrimination or harassment taking place online, act swiftly. Investigate and reprimand any offenders as quickly as possible. Acting as quickly (or almost as quickly) as the time it takes to send out a tweet may end up saving you a lot of money in the long run.