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As every employer should know by now, they have an obligation to address harassment in the workplace. But as most employers are learning, the workplace is expanding past office walls, and employee interactions, and thus the potential for harassment, are extending as well, spilling out of the office into social media.
While the First Amendment protects much employee speech on social media, what if that speech becomes threatening or makes other employees feel unsafe? What obligations does a company have to protect employees from social media harassment?
The issue came up in a recent lawsuit filed by a veteran EMT against the Detroit Fire Department. Kimberly Asaro contends the department didn't do enough to make her feel safe working with Willie Bragg, whose actions on social media, and beyond, she claims constituted harassment. Bragg allegedly wrote on Facebook that he agreed "100 percent" with a post that read: "White men, women and children should be raped and killed. White people should be used as alligator bait. Whites should be enslaved and beaten, like they had done to African-Americans."
According to the lawsuit, there were also harassing comments about Asaro on her Facebook page. A Detroit police officer allegedly asked Asaro if she should arrest her for complaining, and another person posted, "Hit her with a scalpel," to which Bragg responded with a laughing emoji. Asaro complained about the post, but the department said that Bragg's Facebook comments were protected by the First Amendment. And while they told Bragg to stay away from Asaro, the lawsuit claims Bragg would show up at her ambulance to intimidate her.
There may not be much an employer can do to curb social media speech in general. There may be internal policies that limit employees' freedom to disparage or embarrass the company, but these may also be limited by free speech protections. Speech that directly targets a fellow employee, however, or social media interactions that follow employees into the workplace can be addressed by employee conduct and anti-harassment policies. As always, employers should have clear and concise policies concerning such behavior, as well as procedures for addressing policy violations.
If you need help crafting an employee harassment policy or responding to social media harassment at your small business, contact an experienced employment attorney in your area.