Social media platforms such as Instagram, Facebook, TikTok, X, which was formerly Twitter, are used not just for business marketing, but also on a personal level. Employees will likely have their own accounts, which in today’s society, is utilized on a daily basis. People will post about their overall day, events, even their work life. Therefore, it is entirely possible that personal social media accounts can have an impact on your practice.
Many questions arise for practice owners regarding whether they can be held liable for what their employees post on their personal social media accounts. For example, say that an employee posts comments on their social media account, outside office hours, which is viewed as harassment by their co-workers, however, it is not discussed or responded to while working at the practice office location. The question then becomes, is the employer liable? Can the post of this one employee affect the other employees to an extent that there can be a potential harassment claim? The short answer is yes.
Obviously, there are many circumstances surrounding this one example and each potential claim needs to be reviewed and analyzed on a case-by-case basis. However, employers need to understand their liability as it relates to social media and the importance of having a social media policy within their practices, whether it is written in their employee manual or a completely separate policy, in order to fully protect the practice.
In the matter of Okonowski vs. Garland, 2:21-cv-07581-VAP(ASx) (C.D. Cal. Mar. 10, 2023) an employee posted lewd, sexual and harassing comments on their personal social media account A co-worker felt very uncomfortable after seeing the comments and did not want to work with the employee. The employer was notified of the comments and all they did was tell the co-worker not to follow the employee, not to look at their posts moving forward. The co-worker did not believe that was enough to protect them and the matter reached the Ninth Circuit Court of Appeals. After hearing and reviewing all the evidence, the court found that the employer was liable and had a responsibility to protect all their employees from harassment.
The Equal Employment Opportunity Commission, or better known as the EEOC, issued in early 2024 guidance on ways in which employees’ social media use outside of the workplace can contribute to a hostile work environment which can be found using the follow link: https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace.
The court in Okonowski followed the EEOC’s guidance in order to determine whether the employer would be deemed responsible.
Although the case is still ongoing, the overall take away is when it relates to social media, it is not just about the practice of social media, but about the employees, what they post, how it affects their position with the practice and how it affects other employees in the practice.
Having a written social media policy will help protect the practice and put the employees on notice of what behavior will be permitted while they are employed by the practice.
If you have any questions with respect to this, please reach out to your attorney to discuss further.
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