In our previous post, we spent some time discussing certain provisions that employers will want to consider adding to their employee handbooks in order to ensure compliance with both state and federal law. In particular, we touched on the issue of social media references and privacy.
In keeping with this theme, today's post will explore how employers may want to reexamine their stance as it relates to cyberbullying, an otherwise impermissible employee practice that could end up exposing them to a potential lawsuit.
For those unfamiliar with the concept of cyberbullying, the U.S. Department of Health & Human Services defines it as intimidating, insulting or otherwise offensive behavior directed toward another that is carried out via electronic devices and/or social media. Examples include harassing text messages, emails spreading rumors or menacing Facebook posts.
In general, there is no provision under federal employment law that expressly prohibits cyberbullying. However, Title VII of the Civil Rights Act of 1964 prohibits the creation of a hostile workplace on the basis of religion, color, gender, race or national origin. Indeed, this prohibition applies whether the hostile work environment is created through interactions in the real world or the cyber world.
According to experts, employers can help insulate themselves from potential lawsuits related to cyberbullying by ensuring that use-of-technology policies, non-discrimination policies and harassment policies all expressly prohibit this conduct.
They also caution, however, that employers must be certain not to overreach in their attempts to limit cyberbullying, as doing so could run afoul of the National Labor Relations Act, which protects employee rights to take part in concerted activity. To that end, they advise making sure the language in policies is drafted in such a manner that it's clear that only abusive behavior is prohibited.
What the forgoing serves to demonstrate is that those employers with any concerns about drafting an employee handbook should strongly consider speaking with an experienced legal professional who can guide them through the process and help ensure that all important issues have been addressed.