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Yesterday, I read an article entitled, Companies Should Think Twice Before Creating Social Media Policy, which argued that "companies who scrutinize their employees' personal accounts and social media activity may be doing more harm than good." Yet, companies that ignore employees' social media activities squarely put themselves at risk.
For example, consider Espinoza v. County of Orange (Calif. Ct. App. 2/9/12). The plaintiff, Ralph Espinoza, a deputy juvenile corrections officer, was born without fingers on his right hand. Co-workers started an anonymous blog, where they referred to Espinoza as the "one handed bandit" and the "rat claw." The blog became increasingly offensive, culminating in posts such as, "F*** you one hand bandit! You can shove that claw of yours up your ass!" and "hey rat claw, wrote a poem 4 you: Roses are red; Violets are blue; I f***ed your mother in the ass; And she had you!!!!!!!!!"
Espinoza learned of the blog from a sympathetic coworker. Espinoza complained to management, who did little other than asking employees to put the blog to rest. Indeed, the blog continued unabated for eight weeks while management investigated.
A jury awarded Espinoza $820,000 for the harassment.
The court of appeals upheld the verdict, concluding that an employer can be liable for off-duty harassment conducted by employees:
Defendant seems to be taking the position all of the complained of conduct occurred outside the workplace and summarily claims there was no evidence "a current employee" posted any of the comments.... But even on the merits the argument fails....
Employees accessed the blog on workplace computers as revealed by defendant's own investigation. The postings referred both directly and indirectly to plaintiff, who was specifically named in at least some of them, and the postings discussed work-related issues. It was reasonable for the jury to infer the derogatory blogs were made by coworkers.
There are many risks to employers from the un-monitored use of social media by employees. Harassment, such as that seen in the Espinoza case is just the tip of the iceberg. Employers also need to worry about retaliation, defamation, and breaches of confidentiality, not to mention harm to the corporate reputation. For these reasons, employers need social media policies to establish the rules of road for employees, who do not understand that they can be held responsible for their off-duty, online activities.
Lexis.com subscribers can access a Lexis enhanced version of the Espinoza v. County of Orange, 2012 Cal. App. Unpub. LEXIS 1022 (Cal. App. 4th Dist. Feb. 9, 2012) decision.
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