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Employers seeking to insulate themselves from harassment lawsuits prompted by employees' use of social media websites need to establish and enforce practical social media and anti-harassment policies, while at the same time being mindful of worker privacy rights, according to employment analysts interviewed by BNA.

"Given the lack of guidance from the courts on harassment and social media use in the workplace, employers need to be very careful about their workplace policies," Michael S. Cohen, a partner with Duane Morris in Philadelphia, said.

"Facebook and MySpace are here. If employers don't already have a social media policy, they are late to the game and need to put one in place," Cohen told BNA.

"In particular these cases [involving social media use] are really going to highlight issues about when and where the workplace begins and ends," Marc J. Scheiner, also with Duane Morris in Philadelphia, told BNA. "But it is just a matter of using different modes of communication; bad conduct is still bad conduct."

Cohen recommended that employers be especially cautious because of the lack of well-developed case law on social media issues. "We are probably still a year or two from seeing litigation related to social media harassment allegations get through the litigation process, “Cohen said.

Scheiner and Cohen represent employers in workplace-related litigation and train human resources professionals on discrimination issues.

Respecting Worker Privacy Rights. A professor at Ohio State University's Moritz College of Law focused on the risk to employees' privacy rights in overly broad social media monitoring policies and criticized employers that justify such policies by raising the specter of workplace harassment.

"Many people think that there is a conflict-that if employees have privacy rights it creates a greater risk of harassment," L. Camille Hebert, who teaches employment discrimination law, told BNA. "The defense attorneys I talk to say the monitoring is necessary to prevent harassment, but I don't think the monitoring being done is random."

Hebert emphasized that she does not think overly invasive monitoring of employees' social media use should be done "just in case" of potential harassment.

She added that such monitoring likely is unnecessary in the wake of the U.S. Supreme Court's decisions in Faragher v. Boca Raton (524 U.S. 775, 77 FEP Cases 14 (1998)) and Burlington Industries Inc. v. Ellerth (524 U.S. 742, 77 FEP Cases 1 (1998», which provide an affirmative defense for employers in harassment lawsuits HUMAN RESOURCES REPCRT ISSN 1095-6239 filed under Title VII of the 1964 Civil Rights Act. Under Faragher/Ellerth, liability for a supervisory employee's misconduct may be avoided if the employer shows that (a) a tangible employment act, such as a discharge or demotion was not involved, (b) it took reasonable care to prevent and correct promptly the harassment, and (c) the plaintiff-employee failed unreasonably to take advantage of the preventive or corrective opportunities offered.

"After [those decisions] I don't think employers are going to be held liable for social media harassment unless they knew about it and failed to act," Hebert said.

She added, however, that once an employer is put on notice that an employee has been receiving "inappropriate or racy e-mails," that employer has a legal obligation to investigate and promptly address the allegations.

Hebert said that employees need to accept that their social networking use may affect their privacy rights in the workplace.

"When employees put information on public social media sites, then they are going to give up some privacy rights," Hebert said. "People put crazy things on their social media sites but once they make them public then they have given up some rights."

Employees who use social media sites such as MySpace, Facebook, and Twitter should carefully consider what they post to these sites, cautioned plaintiffs' attorney Michael Latimer, a partner with Harkins, Latimer & Dahl in San Antonio.

"Plaintiffs' attorneys should counsel their employee clients to be very careful, very discreet about what they post on their social networking sites such as Facebook," Latimer said.

He added that popular social networking sites such as Facebook and Twitter are "just another means for one employee to subject another to harassment or discrimination."

Employer Liability Questionable. Employee rights advocate Lewis Maltby said that employers cannot be expected to control harassing conduct that is occurring through an employee's third-party wireless provider unless the complaining employee has kept the allegedly harassing images or messages and can give them to the employer to substantiate the complaint.

"Under the federal Stored Communications Act it is hard to conclude that employers have access to third party wireless service records," said Maltby, president of the Work rights Institute in Princeton, N.J. "From the employer's standpoint, I would not be too nervous about [employees' personal mobile device] activity because the employer can't be expected to control conduct that is not happening on its company's server."

"If the employee sending the objectionable or harassing content is not a manager but is someone down the ladder, the question is, did the employer know, should the employer have known?" Maltby said. "[T]he employee has to complain to the employer before they can start suing for harassment," he added.

Maltby emphasized that employers should avoid overly broad or restrictive social media policies and should respect workers' privacy rights in drafting and enforcing such policies.

"The problem is that official policies always say employees have no expectation of privacy, but in practice most employers fail to live up to their own expansive social media monitoring policies," Maltby said. "It really is not fair right now because there is almost always such disparity between the company's official standard and their real, practical standard."

Maltby predicted that the U.S. Supreme Court ruling in Ontario v. Quon (U.S., No. 08-1332, 6/17/10; 28 HRR 649, 6/21110) would likely have some repercussions for private sector employees. He explained that a court's common law analysis of a private sector employee's reasonable expectation of privacy is "almost identical" to that applied to public employees under the Fourth Amendment.

In its decision reversing a ruling by the U.S. Court of Appeals for the Ninth Circuit in Quon (26 HRR 749, 7/7/08), the high court found that the city of Ontario, Calif., did not violate police officer Jeff Quon's Fourth Amendment privacy rights by reviewing his text messages and disciplining him for using the city pager for his personal business while on duty.

Reacting to the decision, Maltby told BNA that if advising employers, he would recommend they "think before they monitor" employees' personal communications and that they establish "strict guidelines" for information technology employees who might be tempted to look at co-workers' messages. He added, "It would be helpful if somebody would set standards" governing workplace privacy rights, suggesting Congress, the courts, or individual states as potential regulators.

"Employers are just being lazy-if they sat down for a few hours and really thought about what they wanted these policies to accomplish, it would be easy to put in place realistic policies, [but] employers see this as too much work," Maltby said.

Management attorney Scheiner voiced a similar opinion, stating that an employer with an overly restrictive social medial policy that it does not enforce may be worse off than if it lacked a social media policy.

"For instance, if an employer has a policy that prohibits all use of all social media but then doesn't block [access to] the sites-is it really enforcing the policy or are [its] managers perhaps enforcing such policies selectively or inconsistently?" Scheiner asked.

EEO Policies Should Explicitly Address Social Media. Cohen and Scheiner said they urge employers to make very clear that their equal employment opportunity -(EEO) and anti-harassment policies apply to employees’ social media use.

"Regarding EEO policies, I am advising and encouraging employers to give tangible examples of what social media use is and is not allowed in the workplace," Scheiner said. "They should link social media policies to real-world examples so employees know what is prohibited and what is not."

Scheiner said that standards of appropriate workplace conduct are constantly changing and emphasized that it is an employer's responsibility to clarify what constitutes acceptable workplace use of social media sites. "I think the trend is towards defining what conduct is appropriate given that social medial access exists. It is less about whether the conduct is on a work computer and more about whether the conduct is inappropriate," Scheiner said.

Cohen emphasized that although social networking is both popular and prevalent, employers need to decide what is best for their organization, and what level of social media access is appropriate for their employees. "It boils down to an employer deciding 'do we allow or do we not allow access to Facebook and Twitter at the workplace? " Cohen said.

"An argument against allowing such access to social media sites is that it is a monumental waste of time and might have implications for workplace harassment issues," Cohen said. "But it is going on and it depends on the organization ... on what benefit the employer reaps from allowing social media use in the workplace."

"Workplace harassment is not about social media use, it is really about interaction between employees," Hebert said. "Employers need to have a strong EEO policy in place."

By JANET CECELIA WALTHALL

7-19-10 COPYRIGHT'" 2010 BY THE BUREAU OF NATIONAL AFFAIRS, INC. HRR ISSN 1095-6239