In today’s world, social media has transformed the way we interact, both within and outside the workplace. However, this hyperconnectivity has also blurred the lines between professional and personal behavior, creating new challenges for employers. At California Labor Solutions, we understand the importance of maintaining a harassment-free and discrimination-free work environment. In this blog, we explore how social media posts can impact the workplace and lead to investigations.
California Fair Employment and Housing Act (FEHA)
The FEHA requires employers to conduct prompt, thorough, and impartial investigations when they become aware of allegations of harassment, discrimination, or retaliation. This includes behavior that occurs outside the workplace but has an impact on the work environment.
Employees can claim a hostile work environment when they endure off-duty harassment or discrimination that is so pervasive or severe that it interferes with their ability to perform their duties.
Recent Ninth Circuit Decision: Okonowsky v. Garland
In the case of Okonowsky v. Garland, the Ninth Circuit addressed the circumstances under which social media posts can be considered harassment. The court determined that social media posts, even if made outside the workplace, can be viewed and reviewed permanently, affecting the work environment. Therefore, under Title VII of the Civil Rights Act, employers can be held liable for a hostile work environment if an employee shares harassing content online that negatively impacts the workplace.
EEOC Guidance on Social Media
The U.S. Equal Employment Opportunity Commission (EEOC) has also issued guidance on workplace harassment, emphasizing that employers can be held responsible for conduct that occurs outside the work context but still impacts the work environment. This includes electronic communications using private phones, computers, or social media accounts.
Continuous Adaptation by Employers
The intersection of social media and workplace conduct is an area that employers must navigate with diligence and foresight. The Ninth Circuit’s decision and the updated EEOC guidance underscore the need to address the implications of online behavior proactively. As technology continues to blur the lines between personal and professional spheres, employers must remain vigilant and adaptable in their approach to maintaining a harassment-free work environment.
Significance & Practical Points for Employers
- Employers may be legally responsible for off-duty social media harassment that impacts the workplace.
- Courts evaluate the effect of conduct, not just its location or medium.
- Highlights the necessity of prompt, serious responses to harassment claims—even when they originate online.
Note: Employers should review and update their policies regarding harassment and social media use. Policies should clearly state that personal social media posts shared with coworkers, which contain content that violates the employer’s anti-discrimination or anti-harassment policies, are prohibited. However, employers must be aware that the First Amendment, the National Labor Relations Act, and general privacy principles limit their ability to control the off-duty conduct of their employees.
Why Choose California Labor Solutions?
California Labor Solutions (CLS) is a distinguished HR firm licensed* to conduct workplace investigations in California. We serve private businesses and public-sector organizations across the state. Our team has successfully conducted hundreds of unbiased workplace investigations, addressing issues and risks within organizations and handling employee complaints related to discrimination, harassment, retaliation, workplace violence, and various types of employee misconduct with exceptional quality, detail, and efficiency.
*California Private Investigator License Number 26311.
Disclaimer
Please note that the updates, advisories, and regulations we receive from the promulgating agency often contain ambiguities and/or are frequently amended, modified, or updated. This material/article/email does not contain any legal advice. The information and opinions expressed herein are based on our reasonable interpretation of the issuing agency’s publication at the time the opinion is expressed and are, therefore, subject to change based on further developments. The effect of the opinions expressed may vary based on your particular circumstances, and it is recommended that you do not rely upon these general opinions prior to obtaining a consultation with your legal and/or financial advisors.