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Social Media: The New Harassment Landscape

Social media is changing the landscape of the internal workplace, providing a new way for employees to socialize and interact with one another.  The online workplace is rooted in conversation which is casual, revealing and often deeply personal.  The direct connection of social media is akin to an invitation into your home. It allows co-workers to share in your personal life with an instant sense of closeness and propels the relationship forward quicker than a traditional office friendship. The boundaries of conduct can become easily blurred and potentially dangerous when this complicated overlapping of private and professional relationships intersect online. Whenever the parameters get ambiguous, the probability of inappropriate behavior occurring increases, creating a growing employer concern for protecting employees from the potential of social media harassment.

Employers need to understand that communications through all means, email, text messaging, instant messaging and social networks should be covered in the company harassment policy. Social media runs a very close second to person-to-person interaction in means of building relationships. Consider some of the most common social networking sites, Facebook, LinkedIn and Twitter. There seems to be little doubt that, when used properly, these platforms have great potential benefit for employers.   The unusual point regarding social media is that an employee’s virtual comments, even those made in their own time, may constitute actionable harassment in the workplace.

Since Blakely v. Continental Airlines,741 A.2d 538 (N.J. 2000), there has been some debate as what out of work conduct can constitute harassment.  In Blakely the Court indicated that a plaintiff can establish an actionable claim for harassment based upon electronic communications made outside the workplace if the electronic medium would be “the equivalent of a bulletin board in the pilot’s lounge.”  Perhaps, in today’s market the employee lounge has been replaced by the smartphone and the bulletin board by Twitter.  Recently, in Espinoza v. County of Orange, etc. al. No. G043067, 2012 WL 420149 (Cal. App. 2012), the California Court of Appeals upheld a $1.6 million verdict against an employer and in favor of an employee who was being harassed by co-workers on a blog.  The employee reported the harassment to his supervisor, who indicated that the complaint would be forwarded through the proper channels, but the employer failed to conduct any official investigation.  Ultimately, the Court of Appeals determined it was proper to allow the jury to conclude that the employer was liable for harassment arising from a blog maintained by co-workers outside of the workplace because it was aware of the harassment and did not take action.

Check back on Friday as we continue to traverse this new harassment landscape.

Benjamin L. Riddle  is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 2305 or briddle@mmlk.com

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