Facebook postings can constitute harassment complaints
If an employer learns that an employee complained of workplace harassment on Facebook, they should investigate the situation. In HR you’re probably often advised to tread lightly on employees’ social networking activities when they occur outside the workplace.
But as an employer, you are liable for harassment between coworkers if you knew or should have known of the harassment. And, if a supervisor harasses a subordinate, the employer is automatically liable if any adverse employment action is taken against the subordinate employee. If there’s been no adverse employment action, then the company can defend itself by showing that it took reasonable steps to prevent and redress harassment (e.g., having an anti-harassment policy, a complaint procedure, an investigation procedure, training, etc.), and that the employee unreasonably failed to take advantage of the opportunity to have his or her complaints addressed. So the bottom line is that, no matter how you come across the information that an employee believes he or she has been harassed or discriminated against, you have an obligation to follow up on that information. California, Oregon, and Washington have laws prohibiting employers from demanding access to employees’ personal social networking pages. However, you can and should still ask the employee about the concerns raised in the postings (for an example of an employer who properly did so, see Debord v. Mercy Health System of Kansas, 10th Cir, Nov. 2013).
Tips: This doesn’t mean that employers should start monitoring employees’ personal social networking activities. But if they raise what could potentially be a harassment or discrimination complaint, you shouldn’t turn a blind eye if it is brought to your attention. Even though a Facebook posting isn’t a proper method for raising a complaint under your policy against harassment, you still should follow up on the information promptly as if the employee used the proper channels. Additionally, supervisors must understand that they are the “eyes and ears” of the company. If they come across information through any avenue, including employees’ online social networking pages, that company policies have potentially been violated, they must follow up on it, or pass it along to HR. In addition to having comprehensive company policies addressing harassment, employers can offer training sessions for employees and leadership development opportunities for supervisors. Contact us to learn more about flat fee counsel with Vigilant.