At Least The Unicorn Won’t Sue You

by Greenberg Glusker Fields Claman & Machtinger LLP

When not writing about the legal issues raised by my favorite TV shows, most of this blogger’s Law Law Land blogs have involved either employment law or social media issues.  So you can imagine my sheer delight when the news of Pax Dickinson’s now-infamous Twitter account emerged, since it is a perfect disgusting marriage of these issues, as well as a cautionary tale to employers and employees alike.

In a nutshell, this is a story about an employee who was fired for writing offensive Tweets.  But the reason this made national news is that Dickinson was Chief Technology Officer of the website Business Insider, which has over 23 million unique views each month and top executives from other dotcoms.  In other words, these guys know a little something about the Internet and social media.  And yet, Dickinson was tweeting his biased worldview for all to see—including his real name and title at Business Insider—for four years (and more than 10,000 Tweets), and the company did nothing until Dickinson was outed by Valleywag’s Nitasha Tiku and the story went viral.  What’s more, at least one of Dickinson’s high-up colleagues previously knew about his Twitter shenanigans and even blocked Dickinson on Twitter.

Dickinson’s Tweets show him to be somewhat of an equal-opportunity offender, with pejorative comments about women, racial minorities, gays, and minimum-wage workers alike.  As I have explained in past blog posts, the First Amendment does not prevent your private-sector boss from letting you go based on thoughtless remarks.  (There may be other legal protections in some contexts as discussed below, but before crying “free speech!” please remember that free speech is not consequence-free speech.)

Here, the consequences run even deeper and Dickinson is potentially not the only one in trouble.   Should some long-suffering colleague of Dickinson’s emerge from the woodwork and claim harassment, a court may consider his Tweets as part of the totality of circumstances in evaluating whether there was a hostile work environment.  Because Dickinson was a supervisor, any proven harassment during his tenure could ultimately be imputed to the company.  (The fact that he was terminated helps, but may not be enough depending on the severity of past conduct and whether any adverse employment actions were taken against the putative plaintiffs.)  What’s worse, as Chief Technology Officer, Dickinson was responsible for hiring within his department—and he made his hiring views known.  According to Dickinson, “Tech managers spend as much time worrying about how to hire talented female developers as they do worrying about how to hire a unicorn.”  Now, if any female developer was rejected by Business Insider in favor of a less-qualified male candidate, she has additional ammunition against the company.

On the other hand, an employer may not go so far in disciplining its employees for online conduct that it tramples on their rights—for example, the right to engage in union activity.  The National Labor Relations Board has become extremely active in recent years, even protecting employees who engage in online name-calling of their supervisors (like “scumbag” or “a—hole”) when it was found to be concerted activity—defined as communication among two or more employees discussing workplace conditions..  (However, even where an employee’s speech pertains to union activity, it loses statutory protection if it is considered to be vulgar, offensive, abusive, or harassing.)

Anti-discrimination laws also protect employees’ expressions of their political or religious views, and in some cases it can be difficult to draw the line—for example, opposition to legalizing gay marriage is arguably a political viewpoint, but depending on how it is expressed, it could also become unprotected hate speech and/or itself be discriminatory or harassing.  (Dickinson himself is now claiming his posts were tongue-in-cheek and targeted at the issues of the day.)

So what’s an employer to do?  Decisions by the NLRB routinely inspire groans by my fellow defense lawyers that “We’re moving to Canada!”  But since that’s not such a realistic option for most businesses, our next-best advice is that every employer should have routinely-updated employment policies.  This should include a lawfully-compliant social media policy, regularly reviewed in order to avoid infringing in any way on employees’ rights, as well as a policy against harassment or discrimination that admonishes employees to notify an appropriate superior of harassing or discriminatory behavior (in the workplace or online).  Dickinson’s colleague did a disservice to the company when he looked the other way and failed to consider the broader implications.  An employer should also specifically notify its employees that their email and Internet activity on company devices will be monitored and may subject them to discipline.  Finally, an employer should provide periodic anti-harassment training to its employees (in California, this training is required every two years for supervisors of companies with more than 50 employees), and if an employee makes a report of harassment or discrimination, the employer should be sure to conduct a meaningful investigation of the matter.

As for employees, it is wise to remember—(and especially if you are tweeting as the self-professed “Worst Person In The World”)—that there is virtually no way to permanently keep your online life separate from your “real” one. Unless you’re a unicorn, of course.  In that case, anything is possible.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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