Employee Rights, Employer Obligations & Social Media – Part Two of a Two Part Series

What obligations do employers have if an employee is being harassed by another employee online? Given that the law in this area is relatively new, the guidance from Courts and other enforcement agencies is fairly undeveloped.

The Equal Employment Opportunity Office issued the following statement on the subject, which provides some minimal guidance to employers navigating this area:

“Even if employees post harassing or derogatory information about coworkers away from the workplace, for example, an employer may be liable for a hostile work environment if it was aware of the postings, or if the harassing employee was using employer-owned devices or accounts.”

Certainly both employers and employees have an interest in creating and maintaining a safe workplace for all employees. If an employee notifies her employer that she is being subject to online harassment, or threatening social media posts, the employer would be wise to conduct an investigation into those allegations much like it would handle any other report of workplace harassment. The fact that the harassment is taking place in cyberspace and not the confines of a traditional office will not typically alleviate an employer’s obligation to prevent and correct such harassment. All employers regardless of size should have a social media policy.

Once a report is made, of course, it will be important that the employer (1) carefully and lawfully obtain the social media information if possible, and (2) carefully manage any information it does obtain. Before acting, employers should consider and evaluate whether the alleged “harassment” is likely to be deemed activity protected by the NLRA and thorough documentation throughout the process is critical.