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Polsinelli PC. In California, Polsinelli LLP

Cyber-bullying, Sexting and Contemporary Harassment in Today's Workplace: Important Legal Lessons from the Big Bang Theory of Modern Workplace Relationships

Chris Mason, Esq.Michael Grubbs, Esq.

real challenges. real answers. sm

Thank You Technology!!!!!!!!!

It has brought us real time postings. . . .



. . . . and realtime not-so productivity.



It has brought usterminations fortechnology misuse. . . .



. . . . andterminationsthroughtechnologymisuse.



And, of course, thankgoodness for autocorrect.


The Big Bang of Workplace Relationships



Alex: This conversation ismaking me uncomfortable.

Sheldon: Yeah, you and me both sister. Now please under-stand, I don’t hold you respons-ible for your behavior because,see, from an evolutionarystandpoint, you’re a slave to your desire to reproduce. But during the work day, when you feel possessed by amorous intent, may I suggestthat you suppress it by leafing through this illustrated book of sexuallytransmitted diseases? Let’s see here.


Technology and Workplace Relationships

1) Sexting / Textual Harassment

2) Cyberbullying

3) Fraternization / Social Media


Harassment -- The Basics

The law generally prohibits workplace harassment based on an individual’s protected status (race, religion, color, age, gender, national origin, disability, sexual orientation).

But, what happens when the conduct occurs electronically?


21st Century Harassment

� As much as 23% of workplace harassment involves texts, social media, or other cyber methods.

� In 2011, 42% of corporate compliance officers reported disciplining employees for misuse of social media. -- But only 31% of companies

have a social media policy.


Textual Harassment

What is it?� Sending inappropriate messages through cell

phone.

Risks?� Similar to traditional harassment, but now we have

tangible evidence to prove (or disprove) allegations. . . and more electronic data during discovery.

� Like traditional harassment, it sometimes begins as a voluntary activity (“sexting”) but becomes harassment when things go bad.


Textual Harassment

Why is it a worry?

– Texts allow employees to be discreet, or indiscreet, as the case may be.

– Questions arise concerning right or responsibility to act when employees off duty.

– Contemporaneous record of what was actually said, which can be used later.


Textual Harassment

EEOC v. Fry's Electronics, Inc. (Washington 2010)

� An assistant store manager harassed a 20-year-old sales associateby sending her sexually-explicit text messages and asking her fordates by text.

� After her direct supervisor reported the harassment to Fry's legaldepartment, the company fired the supervisor who reported it.

� Double-whammy! Harassment and retaliation.

� Settled for $2.3 million, partly because text messages were rock-solid evidence.


Textual Harassment

Message from EEOC v. Fry’s Electronics:

1) Employers must take electronic harassment seriously.

2) Never take action that could be perceived as retaliatory.

But, There is Good News, Employers Can Act:


Textual Harassment

Gainey v. BCBS of SC, (South Carolina 2010)

� Plaintiffs (both male), one the victim’s supervisor, sent sexuallycharged text messages to a female co-worker from their personalcell phones.

� Victim saved the text messages and reported them to HR.

� Plaintiffs were terminated and brought their own Title VII anddefamation claims against the employer.

� But, with the aid of the saved text messages, the employer wassuccessful in securing dismissal of the claims.


Textual Harassment

As in the Gainey decision, the texts may actually help the employer.

Enriquez v. US Cellular Corp.

� Several EEs claimed harassment based on text from supervisor.

� Other texts showed EE in question forwarded the text and stated that she didn’t find the text offensive.

� Employer won, based on EE’s admissions.


Textual Harassment

Employers Must Still Be Even-Handed

Castaneda v. Oregon Dept. of Justice

� Former Oregon Department of Justice worker sues former employer.

� Was fired for sending dirty texts (which he did).

� Basis of suit? “Everyone else was doing it.” But, the female employees who did it weren’t fired.

� Seeks $536,000 / Case Pending.


Textual Harassment

Cases Are Demonstrating That Courts Are Applying Traditional Harassment Criteria.

(a) Both objectively and subjectively harassing.

(b) Other Important Criteria:-- Unwelcome-- Severe and Pervasive-- Company Opportunity to Correct


Textual Harassment

Kurtts v. Chiropractic Strategies Group (CSG), Inc.,

� Plaintiff, a receptionist, received “numerous lewd and sexually offensive text messages at all hours of the day and night” from her direct supervisor.

� Plaintiff reported text messages and resigned that same day.

� Summary judgment granted in favor of employer because Plaintiff resigned at the same time she reported complaint and gave company no time to remedy the situation.

� On appeal, Court allowed retaliation claim to proceed.


Textual Harassment

Remember, Unlawful Harassment Isn’t Always Sexual . . .

Griffin v. Harrisburg

� Claim for racial harassment based on texts sent by supervisor.

� African-American received jokes / derogatory texts about his race.

� Employer ultimately escaped liability for acts because it had harassment policy in place.


Big Settlements

� In other (shocking) news. . .– A professional athlete (Monta Ellis) allegedly

harassed a team employee over several months via text. Case settled quickly and player soon left team.


Do Judges Know Better?

Tucson City Court judge harasses Assistant Public Defender (“APD”) through emails and texts, in addition to “in-person” methods.

� Judge was fired, but too little too late?

�APD sued City.

�Case is ongoing.


Cyber-bullying

� What is it?– Bullying that uses e-technology as a means of

victimizing others. Use of an Internet service ormobile technologies with the intention of harminganother person’s reputation.


Cyber-bullying

Like other workplace bullying, but. . .

�Wider audience,

�Risk of significant reputational damage,

�And, tangible evidence for all (including employer)to see.


Cyber-bullying

� 2010 study revealed that 37% of workers were the victims of cyber bullies.

� 25 states have introduced legislation to deal with bullying in the workplace.


Why does it matter?

� As with other forms of harassment,employers may be liable for conduct oftheir employees on social media andthrough texts.– True even when conduct occurs outside of

work hours. – Think company holiday party: Company can

be liable for conduct at the party, even if it occurs offsite and outside of working hours.


Why does it matter?

What about cyber-bullying?

Liability for employers only occurs when bullying is related to a protected characteristic, but other costs include. . .

– High turnover

– Harm to business’s reputation

– Low productivity – absenteeism, stress

– Lost innovations - bully is more interested in attacking than advancing the company

– Difficulty hiring quality employees when news of cyber-bullying spreads


Cyber-bullying Case

Espinoza v. County of Orange, (Cal. Ct. App. Feb. 9, 2012)

� Disabled employee reports his co-workers’ misconduct. Another employee creates a blog while off-duty and on his personal computer, posting derogatory comments about their disabled co-worker who reported the misconduct – calling him the “Rat” (an oh-so clever reference to his report as well as his disfigured hand).

� The cyber-bullying and harassment spread from the blog to the workplace.

� The harassed employee informs his superiors multiple times but they take little action to stop the harassment.

� Result? -- Employer liable for having knowledge of the harassment but failing to take corrective action.-- $820,000 verdict


Policies

� From these cases, we can see that employers need a social media/texting strategy.

� Answer: Another policy!


Policies

• In creating a social media policy, look at and

reference other policies:

– Non-discrimination and harassment

– Email policy

– Confidentiality

– Corporate code of conduct


Social Media Policy

� Lessons from the cases:

– Have a strong anti-harassment policy with a publicized reporting mechanism.

– Immediately investigate/remedy when a complaint comes to your attention even where it involves offsite conduct.

– Take all complaints seriously.


Policies

� Lessons from the cases

– Craft a social media policy that prohibits conduct not unique to social media, but conduct already prohibited by the employer’s existing policies.

– Make sure policy also forbids conduct prohibited by state and federal law.


Social Media Policy

� Lessons from the cases:– Keep work and home separate where

possible. �Prohibit personal social media use during

working time, irrespective of the content.– Educate employees on policy.

�Employees must be aware of the policy for it to do any good.


Social Media Policy

� But, make sure your social media policy is not too broad.

� NLRB looks at:– Breadth of language– Whether there is a specific exclusion for “protected

and concerted” activity– If you are prohibiting the disclosure of confidential

information, define what confidential information is– You cannot prohibit “any communication that would

embarrass, harass or defame”


Social Media Policy

� NLRB says it is ok to prohibit “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace, even if it is done after hours from home and on home computers.”– “Like” this language. . .


Electronic Devices

� To further limit liability, consider policy that:– Specifies the electronic devices that

employees may use for work; – Notes employer monitoring and tracking;– Sets out the terms for the use of the devices;

and– Restricts the use of devices to business

purposes during working time.


Discipline

Remember, if harassment or cyber-bullying of an employee occurs on social media, take it as seriously as you would if it was occurring in the physical workplace.


Discipline

� But, watch out for: – Political activities online - some states

(California, of course) protect employees political activities, which could include online activity.

– Legal off-duty statutes - some states (Colorado, California) also prohibit discipline of employees for lawful off-duty activity. � In such states, use caution when

disciplining employees for their on-line activity that occurs during non-work hours.


Discipline

Just remember that the NLRB loves going after

employers who fire workers for complaining

about work on social media.

“Just [Don’t] Do It.”


4 Things To Remember

1. What is said online and in text messages can cause as much (or more) trouble to employers as what employees say in person.

2. Having a social media policy (and communicating that policy to employees) is crucial, but . . .

3. A strong anti-harassment policy and reporting procedure may be the best defense.


4 Things To Remember

And finally. . .

4. Don’t hesitate to Tweet, Poke, Text, Email, or even call your friendly neighborhood legal counsel.


Polsinelli provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship.

Polsinelli is very proud of the results we obtain for our clients, but you should know that past results do not guarantee future results; that every case is different and must be judged on its own merits; and that the choice of a lawyer is an important decision and should not be based solely upon advertisements.

© 2013 Polsinelli PC. In California, Polsinelli LLP.Polsinelli is a registered mark of Polsinelli PC

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