• Virtual Harassment: When Online Behavior Becomes a Real-World Problem
  • November 24, 2009 | Author: Brian M. Molinari
  • Law Firm: Epstein Becker & Green, P.C. - New York Office
  • Web-based social networking sites have become part of the mainstream, and companies should consider enhancing their existing electronic communications policies to account for sites like Facebook and Twitter. Undoubtedly, one important part of such a policy should address the issue of coworker harassment in the online or "virtual" world.

    For example, what happens when one of your employees complains that a comment, picture, or video posted online by a colleague is offensive or disparaging? Or that she is being subjected to unwelcome flirtatious comments and messages through a website? Although Internet networking for business or social purposes has many upsides and benefits, it's important that your antiharassment policy proactively address the spectrum of possibilities that can play out in the virtual world and make it clear that employees will be protected in the real world.

    Friends Online

    Quite often, coworkers and colleagues become "connected" on social networking websites and therefore have access to each other's personal profile pages. By connecting through a website, people are essentially "consenting" to not only sharing their own postings but also being subjected to the musings of their "friends." While this networking platform serves many positive and productive uses, you need to be cognizant that it can be a fertile ground for harassment issues.

    Basic social networking platform

    The common thread of most social networking sites is users' ability to post real-time comments describing what they are doing or thinking at a particular moment. For example, Facebook asks its users, "What's on your mind?" and Twitter asks, "What are you doing?" In the case of Twitter, a user may "tweet" what he's doing using 140 characters or less, and his "followers" will receive his message instantaneously via e-mail, online through their Twitter page, or in a text message to a mobile device. In addition, if the Tweeter has set his profile to be public, his tweets are available globally for the world to see and are even viewable on Google searches.

    In the case of Facebook, a user's post, called a "status update," becomes publicly viewable only among her circle of "friends" -- other users she has approved to have access to her Facebook page. Even among her "friends," however, the Facebook user can select who will be privy to her status updates and who will not. On the flip side, Facebook users can employ looser privacy settings so that their status updates are available for all to see.

    In addition to status updates, each Facebook user's page has a "Wall" on which she, or her friends, can post comments, pictures, music, videos, and links to websites. A Facebook user has the ability to control who can post to or view her Wall. A "News Feed" provides up-to-the-minute posts of all the comments and updates posted by her friends. Similarly, a Tweeter's "Home Page" provides a running, real-time list of the tweets of all the other Tweeters he is following. These "feeds" are issued 24 hours a day, seven days a week. Facebook and Twitter also have direct messaging capabilities allowing users to privately e-mail each other.

    Because employees inevitably socialize in the real world, they may eventually find themselves becoming mutual friends in the virtual world on Facebook and followers on Twitter. That means that "friends" and "followers" of users on those sites will be receiving real-time tweets, status updates, and posts whether they like it or not. Of course, if they don't like it, they can simply "unfriend" or "block" a Facebook friend or change their settings so posts from that user won't be viewable. Similarly, a Tweeter can "un-follow" or "block" another person and prevent people from following his tweets. In sum, social networking sites generally have various mechanisms in place for users to control not only what they want others to see but also what they will be exposed to when something is posted by someone in their network.

    Virtual harassment

    In the employment law context, workplace harassment is not limited to conduct of a sexual nature because harassment may involve race, religion, age, and national origin, to name a few possible grounds. Generally, unlawful workplace harassment (based on protected characteristics) occurs when unwelcome conduct unreasonably interferes with an employee's work performance, or creates an intimidating, hostile, or offensive work environment. Isolated and stray remarks generally don't suffice; the conduct must be "severe or pervasive."

    Sexual harassment, perhaps the most common type of harassment, can occur in a variety of circumstances, including:

    • The victim and the harasser may be a woman or a man. The victim doesn't have to be of the opposite sex of the harasser.
    • The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a coworker, or a nonemployee.
    • The victim doesn't have to be the person harassed but could be anyone affected by the offensive conduct.

    Unlawful sexual harassment may occur without the victim suffering economic injury or being terminated.

    For example, consider two co-workers who become friends online.  Tweedledum posts flirtatious and sexually suggestive tweets and posts. Tweedledee then complains to HR that she's feeling harassed by Tweedledum. When asked for details about her complaint, she explains that the harassment is happening strictly in the virtual world, online through Facebook and Twitter, and that she has no complaints about any inappropriate behavior in the real-world workplace.

    Suggestions for policies and enforcement

    This example is for illustrative purposes only. However, it highlights how social media platforms can unwittingly become an avenue for harassing behavior that triggers your company's antiharassment policy. Although Tweedledee admits that she hasn't suffered any harassing conduct in the real-world workplace, she claims to have suffered sexual harassment by a coworker, and she has the "tweets" and "Wall posts" to prove it. So what should you do in response?

    Determine the time and place of the conduct. Your company rightly wants to maintain a healthy, safe, and productive workplace free from discrimination, harassment, sexual advances, or any other comments or conduct that creates an offensive, intimidating, or inappropriate work environment. Even though Tweedledee hasn't reported any physical workplace harassment, she has complained about being harassed by a coworker. The company should therefore take her complaint seriously and investigate it in accordance with its antiharassment policy.

    Preliminarily, your investigation should include whether the "virtual harassment" occurred during work hours or through the company's computer system ¿ employers are generally not expected to be responsible for employees' off-duty or off-premises conduct, especially when virtual harassment is completely unconnected to the workplace. Of course, even if the purported harassment is wholly off-duty and off-premises, the investigation should examine whether the conduct, or its effects, have spilled over into the workplace ¿ much like investigating a complaint of off-duty harassment at a social happy hour that later causes interference in an employee's working environment. Indeed, even if the harasser's online behavior occurred strictly off-duty and off-premises, it's feasible that the alleged victim received and viewed the offensive posts during her work hours on your computer.

    Should you simply block access to sites? While your logical reaction may be to simply block access to social networking websites on the company's computers to mitigate your exposure to liability, such a tactic isn't completely effective. The fact remains that online content is likely viewable from another mobile device like a smartphone as well as other Web sources. In addition to losing out on networking and business development opportunities, employee morale may suffer when you punish the entire workforce by blocking access because of the misbehavior of a few Tweedledums. However, this course of action is at least worthy of consideration.

    Policy content. Accordingly, your company should have policies establishing that in the virtual world, just like in the physical workplace, employees should follow business conduct guidelines, good judgment and etiquette including avoiding discrimination against, harassment of, and other inappropriate actions toward their coworkers. Social website policies can combine aspects of your existing rules for employee e-mail and Internet use and your policies governing communication and confidentiality. Make it clear that employees who are found to have engaged in harassment or discrimination of another employee will be subject to disciplinary measures, including termination. Depending on your type of business and publicity issues, you may also inform employees that if their profile refers to their employment, you expect them to clarify that they speak only for themselves, not on behalf of the company.

    Your policy should advise employees that if they encounter behavior by a coworker that wouldn't be acceptable inside the company, they should simply remove their connection from that user -- e .g. , by "unfriending," "blocking," or "un-following" the person or changing their settings so they're no longer exposed to the offensive comments. Even those approaches may be insufficient, however, because postings on the profiles of mutual friends or followers might still be viewable, and the harasser may set up alter-ego profiles or try direct messaging, "re-friending," or "re- following." If cutting all connections doesn't prove sufficient or if the behavior persists, the employee should report the abuse to the relevant service provider. Most social networking websites have their own conduct and antiharassment policies that can result in disqualification of a user.

    Be mindful of off-duty lawful activity laws. Many states, including New York, have laws prohibiting employers from taking adverse employment action against an employee because of his lawful off-duty conduct, such as political or recreational activities. New York Labor Law § 201-d, which makes it unlawful to terminate an employee because of his "recreational activities outside work hours, off of the employer's premises," may be an issue to consider. Under the statute, recreational activities are defined as "lawful, leisure-time activity . . . [that] is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material." The statute affords no protection to an employee whose off-duty conduct "creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest."

    Whether an employee's conduct in the virtual world constitutes "harassment" or is unlawful depends on various factors. You will have to make an appropriate inquiry, perhaps with the aid of legal counsel, into whether the conduct at issue fits the statutory definition of recreational activity. Even if the conduct is protected by the law, however, the poor judgment exhibited by the employee's conduct may likely conflict with your business interests in having a diligent, efficient, intelligent, and productive workforce. Given the lack of clear case law and regulation in this area, any incidents will likely require a case-by-case approach.

    As part of your efforts to establish policies governing your employees' use of social Web media, you should recognize that harassment issues may arise in the virtual world off your "premises" and spill over into the real world. Just like harassment that may occur at happy hour or a holiday party, these incidents should be dealt with swiftly and effectively. The best guideline is to approach virtual worlds the same way you deal with problems in the physical world -- by using sound judgment and being guided by your relevant values and business conduct rules.