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You wouldn’t let a bully come into your workplace and pummel an employee with a baseball bat. But what if it’s your employee’s reputation the bully batters? What if you employ a cyberbully, or both the cyberbully and the victim? If you are among the 48 percent of U.S. businesses that allow employees access to social media on work computers, are you then liable for a cyberbully’s actions?
The answers you need lie in understanding cyberbullying and knowing your obligations as an employer, then arming yourself with effective policies.
Internet user names allow cyberbullies to conceal their real identities. This personal anonymitycan create a situation in which individuals sink to the lowest common denominator of behavior.
Online inhibition, the loosening or complete abandonment of social inhibitions present in normal face-to-face interactions, allows some Internet users to become less guarded and more willing to open up to others. Disinhibition can also release toxic emotions that dwell beneath the surface, such as when a Tweeter with repressed anger spews venom online.
Further, the Internet’s magnitude and speed both increases the rewards and lessens the consequences for those who unleash heat-of-the-moment hostility without reflection, accountability or self-censorship.
In one of the first cases to set a precedent for how courts would deal with harassment in cyberspace, Continental Airlines pilot Tammy Blakey—the first female pilot to fly the Airbus A300—logged on to the company’s electronic bulletin board in 1995 and found multiple derogatory and insulting remarks critical of her professional abilities. Blakey contested these allegations as defamatory, and filed complaints and a lawsuit alleging sexual harassment and a hostile work environment.
Although Continental noted the Internet server CompuServe oversaw the forum, New Jersey’s Supreme Court found: “Employers do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know” the harassment is “part of a pattern of harassment” in a setting “related to the workplace.” The court described company-oriented computer forums as the modern equivalent of break room bulletin boards.
Knowing Your Obligations
According to Anchorage, Alaska-based attorney Rick Birdsall, “Employers have a duty to protect their employees. When they fail to act, or fail to control the workplace, they can be liable.
“This is particularly true when an employee finds him or herself targeted by a cyberbully because of protected status such as age, race, gender, religion, disability or national origin, and the bullying relates to the workplace in any way,” said Birdsall, the HR senior associate at The Growth Company, a management consulting, training and human resources strategy firm.
In a landmark 2006 case finally decided in 2012, Espinoza v. County of Orange, co-workers blogged insults about an employee with a disfigured hand. They called him “rat,” named his hand “the claw” and offered to pay a hundred dollars to anyone who successfully photographed “the claw.” Espinoza won $820,000 from a jury.
“Bullying that involves physical violence, or the threats of violence, can result in criminal and civil causes of action for assault and battering,” said Edwin Keller, an attorney at Kamer Zucker Abbott, based in Las Vegas.
“If your cyberbully texts or sends e-mails to an unwilling recipient, it might violate your state’s laws against stalking,” he said.
An employer’s obligation to protect employees without violating other employees’ right to free expression means employers need to draft proactive social media policies that meet National Labor Relations Board (NLRB) parameters.
The NLRB Acting General Counsel’s memorandum on social media policies views as compliant the statement: “If you decide to post work-related complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying,” and policies that prohibit employees from engaging in “harassment, bullying, discrimination, or retaliation of co-workers that would not be permissible in the workplace … even if these actions are taken after hours, from home and on home computers.”
Lynne Curry, Ph.D., SPHR, is the CEO of the management, training and HR consulting firm The Growth Company Inc., founder of www.workplacecoachblog.com and is working on a self-training guide for employers and individuals facing workplace bullying. You can write her at www.thegrowthcompany.com or follow her on Twitter @lynnecurry10.
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