Cyber Bullying in the Workplace

Online Harassment in the Workplace

Not only is bullying damaging to the victim, it cuts into productivity, has high costs, and may signal serious issues with workplace culture

Social media has caused the lines between professional conduct, the potential for liability and privacy conflicts online to blur. Employers can face claims from potential employees, employees, contractors and third parties. Likewise, employees must know the limitations of acceptable conduct online and how far-reaching their workplace relationship delves into the social media sphere.

Individuals need to understand social media sites are subject to discovery. Certain courts are finding that no presumption of privacy exists on social media, and so essential pieces of evidence are found online for these disputes and hearings. Proper implementation of social media policies, compliance with professional legal ethics and retention of online records and evidence are key in getting to the root of any of the many forms of employment disputes that may arise.

Common Employment Disputes Involving Social Media Evidence.

Sources of Liability for Employers:

  • Human Rights (e.g. Freedom of Speech)
  • Personal Information and Privacy
  • Labour Codes
  • Intellectual Property Claims
  • Defamation
  • Inadequate contracts or policies

Potential Issues for Employees:

  • Harassment
  • Cyberbullying
  • Trade Secret Disputes

Conduct occurring online must be investigated as thoroughly as though it occurred in the office subject to labour codes and standards. The definition of Harassment and Bullying is offensive or inappropriate statements about co-workers, employers, third parties and contractors. In some instances, employers may even vicariously liable for conduct if not dealt with efficiently and appropriately. Cyberbullying, defamation and “textual harassment” are amongst the many forms of harassment taking place in the workplace.

Unfair Dismissal
Unfair dismissal appeals by both sides of the dispute can use Social Media Evidence; to establish unfair dismissal or rebut a counterclaim;
as photographs on social media have been deemed to provide insight into the lifestyle and mindset of an individual.

The good, the bad and the ugly social media - pre, post and during employment

During the recruitment process it has become standard for employers to not only utilise professional social media platforms such as LinkedIn, but many peruse the Facebook and Twitter accounts of potential employees. However, certain states have limitations on the depth of information an employee should disclose during an interview or screening process, such as age, race, gender or origin, and if an employer seeks this information online, this may give rise to discrimination disputes.

As we will touch on the necessity of company social media policies, many issues can arise from social media-related disputes during the course of employment. As many companies utilise social media platforms to promote their brand, much of the content is curated and created by employees, yet the ownership of such content and accounts often lie in an ambiguous legal spot unless clarified in agreements, contracts and policies. The ownership of social media accounts often lead to post-employment disputes if not clarified; can connections and accounts be owned by a company?

Wrongful termination disputes as a result of social media and online acts are becoming a common occurrence, with social media evidence often being helpful or detrimental to a case. Misconduct by both management and employees can lead to disputes, with added dangers of spoliation of online evidence in these disputes if not captured and preserved securely.

Online Workplace Harassment Case Studies

cyberbullying at work

Nucci v Target Corp (2015)

Although initially a workplace injury case, the precedent between Nucci, an employee of Target, is extremely illustrative of both the power of Facebook or social media evidence and the expectation (or lack thereof) privacy in using social media, both as an employee and in general. Maria Nucci, the plaintiff, initially suffered a slip-and-fall accident during the course of her employment, and claimed damages for suffering consequential injuries, pain, incurring medical costs, loss of income and an impaired quality of life. During a deposition, Target requested access to Nucci’s Facebook page to obtain photographs illustrating Nucci’s physical and mental condition, therefore relevant, to the case at hand. Shortly after rejecting access to her account and 36 photographs disappearing from her profile page, Target filed a motion to compel inspection of her account and an order to refrain from deleting content on Facebook or other social media sites.

In the trial court’s hearing the motion to compel, Nucci claimed she had a “reasonable expectation of privacy” and claimed her posts were protected under the SCA and not discoverable. The court held, however, that the potential relevance of the Facebook evidence to the case outweighed the Plaintiff’s right to privacy. The Appellate Court found that; “If a photograph is worth a thousand words, there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social media before the occurrence of an accident causing injury. Such photographs are the equivalent of a “day in the life” slide show produced by the plaintiff before the existence of any motive to manipulate reality. The photographs sought here are thus powerfully relevant to the damage issues in the case at hand.”

Brown v Tellermate Holdings Ltd. (2014)
This recent case was not only a great example of online evidence in employment discrimination disputes - but was also a landmark spoliation case, highlighting the need to preserve electronic evidence, to conduct a full ediscovery and to authenticate materials.

In this instance, the defendants failed to preserve and produce information from (approximately 50,000 pages) that the plaintiffs claimed were relevant to discovery proceedings, as well as making misleading and unsupported statements to the court, resulting in a Rule 37 sanction.

The Plaintiffs were involuntarily terminated by the Defendant for alleged “poor performance” but sued on grounds of age discrimination. To build their case, the Plaintiffs requested information regarding the performance of other employees, including data from and performance reviews. Tellermate wrongly withheld information, misrepresented facts regarding the availability of requested materials and more and so the Court precluded Tellermate from “using any evidence which would tend to show that the [Plaintiffs] were terminated for performance-related reasons’.

(Canada) Perez-Moreno v. Kulczycki (2013, HRTO)
Whilst on Facebook, an employee posted comments and mailed co-workers, referring to their manager as a “dirty Mexican”. A subsequent tribunal found that workplace-related posts online was deemed harassment in employment contrary to subsection 5(2) of the Ontario Human Rights Code (the "Code"). Harassment was defined as “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome", and it was felt that these indirect, online comments met that threshold. In light of this finding, employers are also reminded of their obligations to investigate claims and uphold standards in light of the Occupational Health and Safety Act.

PhoneDog LLC v Kravitz (2011)
This Californian case answered a common, unresolved modern employment question; if social media accounts and their passwords could be company property or trade secrets. In this case, PhoneDog sued a former employee after refusing to hand over the password to his Twitter account, which had amassed 17,000 under the username @Phonedog_Noah. Kravitz changed his handle name to #noahkravitz, began working for a competitor and used his Twitter account as part of his work. Phonedog subsequently brought 4 claims against Kravitz - one of which was Misappropriation of Trade Secrets.

Phonedog claimed that the Twitter account, particularly the password, was a trade secret and that his continued use of the account to connect followers to a Phonedog competitor was misappropriation. This claim was governed by California Uniform Trade Secrets Act (CUTSA), in which a trade secret is defined as “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value . . . from not being generally known to the public . . . ; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Phonedog identified company trade secrets as the passwords and other relevant information associated with @Phonedog_NAME Twitter accounts, and so the court agreed.

Phonedog and Kravitz settled in 2012 under confidential terms, however Kravitz continues to use the Twitter handle @noahkravtiz.

Mai-Trang Thi Nguyen v. Starbucks Coffee Corp., (2009)
In this case a barista was fired from Starbucks for alleged “inappropriate conduct and threatening violence to Starbucks and its employees”, originating from a MySpace post. Amongst other statements, the post stated; “Starbucks is in deep [Redacted] with GOD!! I am now completely disenchanted with humans n I have NO MO Energy left 2 deal w/ their negativity. I’ve worked Tirelessly 2 not cause trouble, BUT I will now have 2 to turn 2 my revenge side (GOD’S REVENGE SIDE) 2 teach da world a lesson of stepping on GOD. I thank GOD 4 pot 2 calm down my frustrations n worries or else I will go beserk n shoot everyone…”

Whilst the plaintiff retaliated with claims of sexual harassment, religious discrimination, violations of California Occupational Safety and Health Act, and the Fair Employment and Housing Act Section 12940(i)(1), Starbucks claimed there was “no material issues of fact sufficient” to support her claims, and the Federal District Judge agreed.

Social Media Policies Regarding Workplace Cyberbullying

Strong Social Media policies should be enforced and updated by companies, and social media activity by employees monitored. These policies can apply both to company and individual accounts, in the promotion of the company and restricting what content employees place on individual accounts during a period of employment. These policies are generally aimed at regulating not only the exposure and reputation of a brand and company, but also how their employees and representatives do so.

Legal conflicts in the workplace when not abiding by or enforcing a comprehensive social media policy can lead to a multitude of detrimental occurrences, such as:

  • Wrongful or unauthorised disclosure of sensitive corporate information or trade secrets, for which an employee may be held accountable for any loss or damage to the company
  • If any employee posts untrue or misleading information about a company they may, be liable for false advertising
  • Substandard content or posts aimed at or mentioning competitors may pass the threshold of deceptive trade practices
  • Many industry standards, regardless of the industry, have introduced specific measures to regulate social media and online actions by companies, such as the FTC, SEC and FDA
  • Many employee social media disputes delve into the area of privacy and breach of confidentiality agreements, and so clear standards and rules should be set out and maintained through the course of employment.

"If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse, and you say that you are neutral, the mouse will not appreciate your neutrality.” - Desmond Tutu

Tags: #harassment #bullying #cyberbulling #workplace

WebPreserver is an easy-to-use browser-based tool that captures posts like incriminating Facebook admissions, credibility destroying tweets etc. and preserves them with “evidentiary quality” for use in prosecution, litigation or administrative proceedings.

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How WebPreserver can be of use to your firm

WebPreserver is the world's only fully-automated social media and web forensic preservation tool that is unaffected by API restrictions. All content is authenticated for use as evidence in litigation and meets FRE 902.13,14 requirements for admissibility - simple screenshots or PDF exports are not self-authenticating.

This technology takes the onerous, costly responsibility out of preserving social media content as part of eDiscovery proceedings which often requires days of manual workflow. This mitigates the likelihood that evidence will be deleted prior to collection. A lot of content can be removed or edited while waiting for either your team to collect it using manual tools, or in waiting for a third party vendor to collect it on your behalf.

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