Part 2 of 2
Read part one here.
What Should Employers Do Now?
Okonowsky v. Garland involved particularly bad facts and a clear failure to take sufficient remedial efforts. Therefore, employers should take note of the errors in this case to prevent similar issues in the future.
Train Your Leaders
Someone in a leadership or management role should not be posting derogatory or hateful comments about any employee – period, full stop.
Act On Complaints
It does not take an HR expert to know that when an employee like Ostronsky makes a complaint, the employer must take immediate and corrective action in response to harassment allegations that the employer knew or should have known. In Okonowsky v. Garland, the Ninth Circuit enumerated the prison’s failure to take immediate and corrective action, including conducting a bare investigation involving only a portion of the social media posts and looking the other way in relation to Okonowsky’s complaints.
Alternatively, employers should be prepared to investigate the entire range of inside and outside workplace conduct, including allegedly hostile social media posts, and promptly assure employees that their complaints are being taken seriously, not that they need to toughen up.
Update Your Policies
Employers should also consider adding or updating their social media policies to include language regarding abusive or harassing behavior both inside and outside the workplace. Be clear: conduct or posting that is outside of work can violate the policy and subject you to discipline, if offensive to co-workers, subordinates, independent contractors, clients and/or customers.
An updated social media policy, combined with social media training, is a good step forward to limit potential liability.
Also, enforce your social media polices. If there is conduct outside of work or on social media which is offensive, consider whether the employee can or should be disciplined. In so doing, be careful to consider whether this was ‘protected speech’ under state or federal law.
Be Careful of Your Online Presence
Any employee but certainly any manager should be careful as to how they personally interact with employees on social media. The 9th Circuit took particular offense to the fact that several decision-makers followed, and sometimes even endorsed, Hellman’s abusive posts, without coming to Okonowsky’s aid.
Employers do not need to refrain from having social media connections with employees outside of work. But, the way employers communicate, like, comment or share on social media may be relevant to whether it took prompt and thorough action to remediate claims of harassment.
What Comes Next?
Courts will likely continue to evaluate the impact of social media on discrimination and sexual harassment claims under state and federal law.
While the issues in Okonowsky v. Garland appeared clear-cut, courts will be asked to consider less obvious uses of social media that may or may not constitute objective hostile work environments.
For example, consider the fact pattern in Okonowsky v. Garland, but:
- What if no co-workers or superiors followed, liked and commented on the social media account posting potentially hostile or abusive content?
- What if the content of the social media posts was not directed at a single co-worker, but still offended a single co-worker or group of co-workers?
- What if the two employees were friends outside of work, the social media posts started as “jokes,” but eventually went too far?
Need Assistance with Workplace Harassment Issues at Your Workplace?
The team at Synergy HR is available to conduct workplace harassment investigations, provide legal advice related to harassment cases, and provide anti-harassment training for employees and supervisors. This training can be conducted either in person or virtually.
Contact us today to discuss your concerns regarding unlawful harassment liabilities at your organization.
Is your Employee Handbook
2025 Compliant?
Like it or not, recent federal and state law changes, regulatory changes and precedent-setting federal case law have necessitated the updating of your policies, procedures and forms.
And these required updates apply to employers of all sizes.
These revisions should have been in place by January 1, 2025.
Synergy Human Resources is available to help ensure that your policies, procedures and forms are updated and compliant for the new year.
