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Harassment 2.0: Are You Liable For Your Employees’ Cyberbullying?

An appeals court in California recently held an employer liable for employees’ off-duty harassment of a disabled co-worker on a blog.  Unfortunately, the facts are not unique and could be happening right now in your workplace.  In Espinoza v. County of Orange, the court held that the employer’s knowledge that the harassing blog existed and had been generated by co-workers was enough to trigger the duty to take prompt remedial measures.  A crucial fact the court noted was that some harassment occurred in the workplace, making the online harassment an extension of the workplace harassment.  Although this case was decided under California state law, it signals how courts may analyze cases across the country in the age of Web 2.0, in which, for better or worse, the Internet’s content is largely user-generated and accessible by practically all.

Generally, employers do not have a duty to monitor employees’ private communications.  However, the Espinoza case demonstrates that once an employer becomes aware of off-duty harassment, it may have a duty to act to stop it if it can be tied to the workplace.  In Espinoza, the fact that some harassment also took place at work was sufficient to render the employer liable for the off-duty harassment as well.

In the face of Espinoza, we have the National Labor Relations Board’s (“NLRB”) “Facebook firing” cases which are occurring around the country.  In these cases, employers were held liable for firing employees who used the Internet to criticize their employer and/or their managers.  As a result, many employers are afraid to discipline employees for online conduct.  This dilemma is real but must be overcome.  The NLRB has endorsed the use of social media policies that prohibit harassment if they are written properly, but “properly” seems to be a moving target.  An employer who disciplines or terminates an employee for online harassment (especially based on a protected class such as age, sex or race) of another employee is unlikely to run afoul of the labor law but your case must be built properly.  Staying abreast of the current developments is a must in this area.

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment as well as counsel on employment law issues in general and labor law issues. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.