October 16, 2014

Workplace bullying: on the job with Scut Farkus

Posted in Bullying, Bullying, Cyber Bullying, Discrimination, Harassment, Harassment, Hostile Work Environment, Workplace Violence tagged , , , , at 10:30 am by Tom Jacobson

Scut Farkus

Scut Farkus – future workplace bully?

In the holiday classic A Christmas Story, playground bully Scut Farkus torments Ralphie Parker until Ralphie pummels Scut after one too many snowballs to the face. We cheer for Ralphie because he’s the good kid who takes a stand against Scut’s relentless bullying. But what happens when Scut gets a job? What is the law on workplace bullying?

I recently attended a community conversation about workplace bullying. The discussion confirmed that there is much confusion about the topic. The debate is no doubt fueled by recent media attention and legislative attempts to regulate bullying.

Those efforts have been partially successful in the school setting. For example, the State of Minnesota earlier this year passed the Safe and Supportive Schools Act. This new law defines and regulates bullying in the state’s public and charter schools. However, workplace bullying is neither defined nor prohibited by any state or federal law.

Even if the conduct creates a hostile work environment, bullying alone is not unlawful unless the behavior violates some other established law. Recent court decisions emphasize how difficult it is to turn garden-variety bullying into a legal claim.

For example, in Johnson v City University of New York, an employee claimed that a co-worker’s bullying violated Title VII. The judge last month threw out the case, saying:

Victims of non-discriminatory bullying at the workplace, like those treated unfairly for reasons other than their membership in a protected class, must look outside Title VII to secure what may be their fair due. The Court does not condone bullying, but it cannot read Title VII to protect its victims unless the bullying reflects discrimination based on race, color, religion, sex, or national origin.

The Minnesota Court of Appeals last year overturned a $270,000.00 Ramsey County jury verdict in favor of an employee who reported being bullied by his boss (see Absey v. Dish Network, LLC). Because Minnesota has no anti-workplace bullying law, the plaintiff’s legal theory was actually based on Minnesota’s whistle-blower law, Minn. Stat. § 181.932. In reversing the jury’s verdict, the Court of Appeals ruled that the plaintiff failed to prove that the employer’s adverse action against him was because he complained about his boss.

Bullied employees have found some limited success in the courts. In one Indiana case, Raess v. Doescher, an employee won a lawsuit based on his employer’s behavior, which the court described as “aggressively and rapidly advanc[ing] on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him.” This conduct could certainly be characterized as “bullying,” but the plaintiff won his case not because he was “bullied” but because the jury found the employer’s conduct to be an assault under Indiana law.

These cases underscore the current reality that when employees are confronted by a Scut Farkus-like co-worker, there are no laws specifically defining or prohibiting workplace bullying. However, if the bully’s conduct is egregious enough, there already exist other legal claims that could provide recourse. In addition to assault and whistle-blower claims, it is conceivable that under the right set of facts, bullied employees could successfully sue for intentional infliction of emotional distress, negligence or other wrongs based on another employee’s bullying behaviors. And, when bullying is based on employees’ protected class status, they may have viable claims under Title VII and/or comparable laws.

But rather than litigation and legislation, perhaps the better solution is to curb such behaviors through better employment policies and practices that encourage and model respectful working relationships.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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September 24, 2012

Royal Photos Shine Light on Privacy Concerns

Posted in Background Checking, Computer Use, Cyber Bullying, Employee Privacy, Internet Policies, Intrusion upon Seclusion, Invasion of Privacy, Misappropriation of Likeness, Publication of Private Facts, Social Networking, Telework / Telecommuting, Uncategorized tagged , , , , , , , at 10:30 am by Tom Jacobson

As far as I know, no paparazzi has ever caught me in a compromising photo. Well, there is one of me shaving my legs before qualifying for Nationals at the 1985 North Central Conference swimming championships.  It surfaced on Facebook 25 years later (thanks to one of my fun-loving teammates!), but my Gillette moment has obviously never drawn the kind of attention that two royals frolicking on a balcony in France get.

Me, prepping for NCC Swimming Championships (spring, 1985).

The whole Kate and William thing shines new light on an old problem: the blurred line between a person’s public life and private life. So, just what are a person’s rights when that line is crossed?

Minnesota recognizes three distinct claims for invasion of privacy: intrusion upon seclusion, misappropriation of another’s likeness, and publication of private facts.  The Minnesota Supreme Court recognized these three separate claims in the 1998 case of Lake v. Wal-Mart Stores, Inc. In that case, the Court differentiated between the three claims as follows:

Intrusion upon seclusion occurs when one intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns if the intrusion would be highly offensive to a reasonable person.

Misappropriation protects an individual’s identity and is committed when one appropriates to his own use or benefit the name or likeness of another.

Publication of private facts is an invasion of privacy when one gives publicity to a matter concerning the private life of another if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.

For the most part, the issue is the same as it has always been: people have a right to live their private lives, to not have others misappropriate their identities, and to not have private aspects of their lives made public. But what has changed is the ease with which these rights can be violated. Sophisticated, yet accessible, technology makes it easy to gather information about others. And, with a few clicks of a mouse, that information can be shared with the world.

The workplace presents special privacy challenges. Employers have a need to know about the people they hire and employ, so they want to gather information about those employees. Employers also need to make sure their computers, websites, e-mail and other technologies are being used appropriately, so they may want to monitor their employees’ use of these technologies. And, once sensitive information is learned, employers are challenged to make sure it is not used or shared inappropriately.

What you need to know: To minimize the risk of being held liable for invasion of privacy, employers need to develop policies and procedures that strike a balance between their need to gather and use relevant information about employees and their employees’ privacy rights.  This is particularly true with respect to technology and social media policies.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

March 19, 2012

Dharun Ravi Guilty in Tyler Clementi Cyber-bullying Case

Posted in Cyber Bullying, Employees' Privacy, Internet Policies, Negligent Retention, Sexual Orientation, Social Media in the Workplace, Social Networking tagged , , , , , at 10:02 am by Tom Jacobson

A jury has found Dharun Ravi guilty of 15 criminal charges stemming from the cyber-bullying of his Rutgers University roommate, Tyler Clementi. Ravi was charged with the crimes after he used a webcam to spy on Clementi and another man having sex in their dorm room. Shortly thereafter, Clementi committed suicide.  For more details on the underlying incident, see my October, 2010 post, Tyler Clementi Suicide: Lessons for HR – and for Us All.

Ravi was not charged with any crimes directly related to Clementi’s death, but he was charged with and found guilty of a number of crimes, ranging from invasion of privacy to lying to investigators and witness and evidence tampering.  For more information on the verdict itself, see NY Times article, Jury Finds Spying in Rutgers Dorm Was a Hate Crime.

What you need to know:  Although the case does not directly relate to the workplace, it does have employment law implications.  For example, many states, including Minnesota, recognize invasion of privacy as a legal claim. Therefore, it is entirely conceivable that such claims could be brought against an employer that allows its computers to be used for cyber-bullying.  Many states, including Minnesota, also allow claims to be brought against employers which negligently retain or fail to supervise employees who harm others; if the harm stems from cyber-bullying via a workplace computer, it is not too difficult to envision a negligence claim against the employer who allowed it to happen.  To reduce this risk, employers should adopt workplace technology / social media policies which prohibit the use of the company’s computer resources to commit cyber-bullying.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

June 14, 2011

Child pornography on workplace computers — ND employees become mandatory reporters

Posted in Computer Use, Cyber Bullying, Employee Handbooks, Employee Privacy, First Amendment, Social Media in the Workplace, Social Networking, Telework / Telecommuting tagged , , , , , , at 7:59 am by Tom Jacobson

In an effort to stem the troubling tide of child pornography, North Dakota has taken a unique approach: the state has passed a law requiring that all workers who know or suspect that child pornography is on a workplace computer must report the information to the North Dakota Department of Human Services.

The new law, which goes into effect on August 1, 2011 adds the following provision to section 50-25.1-03 of the state’s Child Abuse and Neglect Law:  “A person who has knowledge of or reasonable cause to suspect that a child is abused or neglected, based on images of sexual conduct by a child discovered on a workplace computer, shall report the circumstances to the department.” Under this law, it will be a crime for an employee/mandatory reporter to willfully fail to make the required report.  It will also be a crime for an employer to retaliate against an employee who makes a good faith report.

Minnesota also has a mandatory reporting law, Minnesota Statute § 626.556, but it does not impose a reporting obligation on workers in general; only certain professionals such as doctors, social workers, law enforcement personnel, clergy, etc., are designated as mandatory reporters of child abuse or neglect.  And, it does not directly address this issue of computerized child pornography.

North Dakota’s new law is not only an aggressive move to try to stop child pornography, for it is also a regulatory foray into the intertwining world of work, technology, social media, and privacy rights.   Arguably, this law gives North Dakota employers a stronger case that their employees should not expect any right of privacy with respect to their use of company computers.  It should also be signal to everyone that new laws will likely be passed to address the complex entanglement of work, social media and related technologies.

Until these laws are on the books, or until existing laws are interpreted and applied to these ever-changing technologies, the best practice is to develop sound employment policies that clarify what every employee’s rights and responsibilities are with respect to their use of social media, computers, smart phones and whatever the next great technologies may be.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

October 22, 2010

Facebook follies continue to confound

Posted in Cyber Bullying, Social Media in the Workplace, Social Networking tagged , , , , at 3:17 pm by Tom Jacobson

Sometimes you just have to ask  yourself, “What were they thinking?” 

In a story today in the Red Tape Chronicles, MSNBC reports on the growing number of cases where Facebook interactions between teachers and students have crossed multiple boundaries (Teachers, Students and Facebook, a Toxic Mix, http://redtape.msnbc.com/2010/10/).   According to the story, three teachers were fired after posting comments like “This is sexy” under girls’ pictures.  Some of them even used Facebook to initiate real-life relationships with students.

A Pennsylvania school suspended a teacher after photos of her with a stripper showed up on Facebook.  A Florida teacher was suspended after posting a comment about how he “hated” his students and school.  In Washington, D.C. a special education teacher posted “You’re a retard, but I love you.”

On the flip-side the MSNBC story also notes that fake profiles attacking teachers and school administrators also abound on Facebook.  And, with the help of the American Civil Liberties Union, at least one student has been successful in gaining First Amendment protection under the United States Constitution for her Facebook criticism of her English teacher.

As Facebook and other social networking sites continue to evolve, so will the body of law surrounding it.  In the meantime, employers and employees would be wise to realize that while social networking sites can be a great business tool, they can also be a tremendous liability if not handled properly.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney. 

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