How “Off-the-clock” Facebook Messages Created a Hostile Work Environment

By Eric B. Meyer

I’ll share with you this case about a former employee of a Puerto Rican municipality.

This plaintiff alleged that she was subjected to a hostile work environment based on her gender. And part of that hostile work environment was a series of Facebook messages, which included crude comments about the plaintiff’s gender and sexuality.

Now, here’s the thing. While the nasty Facebook messages were sent from work, the plaintiff received them at night when she wasn’t working. So, the defendant argued that, as a matter of law, these Facebook messages could not be part of a hostile work environment.

The court disagreed:

The Municipality first contends Maldonado is precluded from arguing she suffered an abusive work environment due to incidents that occurred outside the workplace. Maldonado responds that “her absence from the workplace did not make her any less subject [to] attack” from harassing messages. The parties do not cite supporting authority for their arguments. In Crowley, the First Circuit held that “[c]ourts . . . permit evidence of non-workplace conduct to help determine the severity and pervasiveness of the hostility in the workplace as well as to establish that the conduct was motivated by gender.” ….Accordingly, Maldonado is not precluded from relying on the Facebook messages she received solely because they occurred outside the workplace.”

This makes perfect sense. Imagine a sexual harassment situation at work where the harassment continues outside of work hours. The nasty behavior outside of the office merely reinforces that the behavior at work is both offensive and unwelcome.

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The 24/7 social media conundrum

We can change the facts up a bit and still reach the same conclusion. That is, even if the harassing Facebook messages were sent to the plaintiff from a non-office computer, they could still contribute to a hostile work environment.

This is especially true if the plaintiff reads them at work.

I’ve discussed before what’s been referred to the 24/7 social media conundrum. That is, as soon as employee abuse of social media — whenever it takes place — touches the workplace, then it becomes the employer’s problem.

Therefore, employers should treat these social media harassment issues as they would any other form of harassment: Take them seriously, investigate, and take reasonable steps designed to end it.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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