As we are all aware, the news has been populated with stories concerning allegations of sexual harassment and misconduct, particularly in the entertainment and media industries as well as government institutions. These stories have contributed to the “#MeToo” movement, which originated on Twitter and other social media websites in late 2017 and has since become a widespread message on social media encouraging individuals to share their stories and speak out against sexual harassment and abuse. Although its purposes are laudable, the #MeToo movement is a touchy subject for employers, who ever-more-frequently find themselves accused of sexual harassment or other misconduct on social media and must grapple with the implications of publicly aired grievances.
In light of this possibility in today’s climate, employers should preemptively review their non-discrimination, harassment, and social media policies and procedures. The primary goal should be to encourage employees to submit their complaints confidentially through approved internal processes, as opposed to posting allegations of misconduct alongside the employer’s name and “#MeToo” on social media to the world at large. Employers should consider the following:
- Review your sexual harassment and non-discrimination policies. Well-drafted policies should provide appropriate methods or venues to report complaints of sexual harassment so that employees do not feel the need to resort to publicly airing their grievances on social media. These policies are your first line of defense. Policies should designate who employees may report complaints to, and should provide for the confidentiality of all complaints of sexual harassment or abuse. Additionally, employers should provide an alternate method to report complaints anonymously, if possible. For example, many large employers have 24-hour hotlines in place that allow employees to report complaints of sexual harassment or abuse.
- Provide regular training on your sexual harassment and non-discrimination policies and how to report instances of sexual harassment or abuse. Encourage employees to speak up! It is always better to know about an issue and address it than to be blindsided by it later.
- In addition to a rigorous and enforced non-discrimination policy, review your social media policy. Well-drafted social media policies should prohibit employees from defaming the employer, as well as its employees, on social media. Social media policies may also direct employees to the appropriate internal method or forum to submit complaints, such as through human resources. Employers are also advised to discourage use of company affiliation on social media without permission, and if affiliation is permitted, to require the use of a disclaimer. Note, however, that employers may not prohibit employees from discussing or complaining about the terms or conditions of employment (such as compensation) on social media under the National Labor Relations Act (NLRA). If a social media complaint arises about your company, consider obtaining legal advice before taking action against an employee as the law in this area is evolving quickly.
- Consider if your employees have signed any agreements with non-disparagement provisions that prevent them from making defamatory or disparaging remarks about the company or individual employees in connection with their employment. The non-disparagement provision may apply to remarks against the employer, other employees, or both. Employers concerned about employee complaints on social media may wish to consider incorporating these provisions into any employment agreement, including restrictive covenant agreements (such as confidentiality agreements).
Further, in the event that an employer does find itself (or its employees) publicly accused of harassment on social media, the employer must carefully consider how to respond to the allegations, as well as the alleged victim and harasser. First, the employer should investigate the complaint and determine if there is any veracity to it. Although the social media complaint will not have been reported through appropriate channels (as should be provided for in the employer’s policies), and the employer thus may or may not be legally obligated to investigate, the best advice is to conduct a thorough investigation notwithstanding the lack of complete information. The employer could likely experience additional backlash if it fails to take the allegations seriously and respond appropriately. Further, it looks bad—both to the public at large as well as to a court if litigation were to arise—if it appears that the employer ignored the allegations or did not take them seriously. As a preliminary matter, the employer should consider setting up a meeting with the non-anonymous employee to discuss the allegations and to obtain more information to determine if further investigation is required. Even anonymous allegations should be seriously considered and an investigation undertaken to the extent possible.
Second, and after investigating the allegations as appropriate, the employer must carefully consider how to respond to both the employee who posted on social and the accused harasser. If the allegations are determined to be true, the employer should take appropriate disciplinary action against the harasser in accordance with its policies. A more difficult question is how to deal with the complainant, who may have violated the employer’s social media, harassment, or non-discrimination policies (or possibly even a non-disparagement provision) by complaining on social media. Although the employer may have grounds to take disciplinary or other action against the complainant, it may be unwise to do so, even if the employer’s investigation determines that the allegations are false. Punishing an employee after reporting sexual harassment is likely to be viewed poorly by the community and other employees—particularly in light of the current social and legal climate. And depending on the nature of the complaint, it might be impermissible under some statutes to take action against employees who seek to enlist others in support of a more general cause.
Employers should take allegations of harassment on social media seriously and not take disciplinary or other action against current employees who make #MeToo social media posts complaining of harassment unless extreme circumstances justify the action. Even then, the costs and benefits of the discipline must be carefully weighed against the possibility of negative publicity. Above all, employers must educate employees on their policies and procedures for properly reporting instances of harassment or discrimination; by doing so, employers can work to avoid being on the wrong end of the #MeToo movement.