By Nate J. Kowalski
As reported by the Daily Journal, an Orange County jury recently returned a large verdict in favor of an Orange County juvenile corrections officer whose co-workers mocked his deformed hand on an unofficial blog about the workplace. Some of the plaintiff's co-workers posted comments mocking the plaintiff with terms such as "rat claw" and "one-handed commander." After he complained to the County, the plaintiff was removed from his position. He alleged that he was ostracized by co-workers, that the County did not investigate his complaint, that the County did not protect him from harassment, and that the County retaliated against him.
As use of blogs and other social media becomes more common, we are often asked, what are the legal implications of these new technologies? While there are few reported cases addressing the impact of Facebook, Twitter and the like on employment law, we believe courts will for the most part apply existing legal standards to the use of social media.
In a typical case alleging harassment by co-workers, the employer has a duty to investigate the alleged harassment and to take appropriate remedial measures if warranted. Here, the jury apparently concluded the County knew about the harassment, failed to take appropriate remedial measures, and retaliated against the plaintiff by removing him from his position.
An employer's duty to investigate and to take appropriate remedial measures applies not only when an employer knows an employee is being harassed but also when an employer should know about the harassment. Thus, the duty can be triggered even if an employee who is being harassed does not complain about it. This can become more complicated in the digital age. What if harassing blog entries are posted on a password-protected blog and then brought to management's attention? What if the complaining party surreptitiously gained entry to the password-protected blog? Does it make a difference whether the harassing blog entries were made at work or at home? Does the employer ever have an obligation to monitor an employee's blog? These kinds of questions are making their way through the courts already, as this recent jury verdict illustrates.
