Can employer terminate its employee for passing critical remarks against its co-worker outside the office in social media like facebook. Will it amount to curtailment of freedom of expression. What if the employee was harassed/found bullying and is punishable under sexual harassment act. Can the employer still take restrictive action. Useful tips by Tim for balancing legal and cultural concerns when faced with an escalating workplace dispute.

I found this article very useful and informative for employers to examine if it needs to be involved between co-worker dispute outside the employment. However this article is primary based on US laws and when applying these principles for jurisdiction like India and other APAC countries, the country specific employment laws needs to be examined and the circumstances involved in such dispute and will differ from case to case. Happy reading!

Workplace Conflicts: How Involved Must An Employer Be?

By Tim Garrett

December 23, 2015

The lines are becoming increasingly blurred between on-duty and off-duty conduct, and as a result, employers face added challenges in responding to workplace conflicts. The electronic age makes it difficult to define the limits of the workplace, and an employer’s duty to respond appears ever-expanding. What’s more, an employer faces a tension between under-reacting on the one hand, and thereby defining the workplace and its responsibility too restrictively, and over-reacting on the other hand, thereby defining the workplace and its duty too expansively.

Employers generally know that they should have policies prohibiting unlawful harassment and workplace threats or acts of violence against person or property. But, of course, not every dispute is a workplace conflict. In enforcing such policies, employers face inconsistent and increasing pressures, such as:

• Legal and cultural incentives to address, as broadly defined, workplace harassment and workplace violence, perhaps with a corresponding push to adopt gun policies (a topic worthy of discussion beyond this article); and
• Legal and cultural disincentives to define these terms less broadly, from the National Labor Relations Board’s (NLRB) expansive reading of protected activity on social media and from privacy advocates and work-life balance concerns.

These tensions coalesce in a variety of ways. Interestingly, the first highly publicized “social media” case before the NLRB – Hispanics United of Buffalo—arose from an employer’s attempt to address what was reported as workplace harassment occurring in a private, off-duty Facebook conversation.

The conversation was triggered after one employee, Lydia, had complained that certain other employees were not as committed to assisting the company’s clients, and Lydia allegedly shared her intention to report such lack of commitment to management. This prompted the off-duty Facebook conversation among five co-workers who shared highly critical comments about Lydia. Lydia then reported to management that these co-workers were spreading lies about and bullying her on Facebook. The employer investigated, found that bullying and harassment were occurring, and terminated the employees for violating the employer’s “zero tolerance” policy related to bullying and harassment. The employees complained that their terminations were unlawful, since they were engaged in “protected concerted activity” on Facebook that took place on their own time and with their own equipment. The NLRB agreed with the employees, held the employer violated the law, and ordered the employees reinstated.

So, should the employer have ignored the bullying and harassment? Is that the lesson? Certainly not. Yet:

• The NLRB did not decide the case based on the off-duty nature of the conversation, but it did note that the conversations occurred on non-workdays, on the employees’ own equipment.
• The NLRB decided that the “protected” nature of the Facebook conversation “trumped” the company’s policy violation, especially since the harassment was not based on any legally protected characteristic (race, sex, color, religion, age, disability, etc.).
• The NLRB ruled that, even if the policy had been more clearly violated, however, even “legitimate managerial concerns to prevent harassment” do not justify policies that “discourage the free exercise of Section 7 rights” by subjecting employees to discipline on the basis of “subjective reactions of others.”
• In other words, Lydia’s “subjective reactions” to her co-workers’ Facebook conversation did not cause the Facebook conversations to lose their protected status.
• “A wholly subjective notion of harassment” is not sufficient, according to the NLRB.

So, what is the practical guidance for balancing these competing legal and cultural concerns when faced with an escalating workplace dispute?

Evaluate the relationship issue that has arisen.

• What is the complaint? What occurred?
• Was there an offensive comment or utterance, such as an expletive?
• Is the comment or utterance ambiguous in meaning?
• Is the comment or utterance generally heard in “shop-talk?”
• Is the comment or utterance reasonably and clearly inappropriate in some sexual, racial, religious (or other protected characteristic) way?
• Was there a threat?
• Is the threat direct and specific? A direct threat generally loses its “protected” status under NLRB law.
• Is the threat indirect and non-specific?
• What is the connection to the workplace?
• The less tenuous the connection to the workplace, the less an employer would be expected to respond.
• However, as a practical matter, the more serious the misconduct, the more likely the employer will need to take a broader view of any workplace connection.
• Note that in Hispanics United, the “harassing and bullying” conversation was merely a Facebook conversation; it was not face-to-face, was not threatening, was not connected to any protected characteristic of the complaining employee, and was not conducted at work, or on work time, or on work equipment.
• How and when did the employer learn of the issue?
• Did the alleged victim complain directly? Or, did others complain but not the alleged victim?
• Did the complaint occur soon after the offensive conduct? Or, was there some delay in coming forward?
• If answers to these questions are not readily apparent, investigate by talking first to the individuals involved.
• Merely asking about what has occurred does not necessarily mean the employer will view the matter as workplace-related.
• Ask questions to make some preliminary assessment of whether the situation is workplace-related; failure to do so is risky from a future litigation posture, but more importantly says to the alleged victim, “we don’t care.”
• Evaluate if the employer has notice of a workplace dispute/violence issue.
• If so, the employer has some duty to act.
• The employer’s actions must fit the narrative of what the employer has determined occurred.
• For example, if the employer determined that a threat of violence occurred, the employer would be expected to:
• Remove the employee from the premises (if not done already)
• Restrict workplace access (disable swipe card, for example).
• Contact building security, if applicable.
• Contact local police authorities to report the threat.
• Assist victim-employee in seeking, if needed, an order of protection/restraining order.
• If, however, the dispute is less serious than some threat of violence, some discipline should be imposed.
• The discipline needs to fit the nature of the offense.
• Employer should reinforce that retaliation by either side of the dispute will not be tolerated.
• At times, multiple persons in the dispute bear some responsibility for its escalation
• The employer must act consistently with that finding,
• Even if it means the person who complained may also receive some counseling or discipline.
• If the employer determines it has not received notice of any workplace dispute:
• Employer should detail its rationale.
• Employer should reinforce to the persons involved that management will not tolerate the private dispute creeping into the workplace and if that happens, it will be addressed.
• Employer should be willing to discuss options with the persons involved in the dispute:
• Reference to EAP or anger management.
• Reference to local authorities, even providing some time off to deal with these issues with authorities.

The line between off-duty conduct can again be blurred for employers when dealing with employees in situations involving domestic violence. On Oct. 12, 2012, the Equal Employment Opportunity Commission (EEOC) published a guidance fact sheet counseling employers to be careful not to “overlook” domestic violence as a potential basis for employment and disability discrimination, workplace harassment or retaliation. Employers should proceed with caution in these situations and consider the following:

• The EEOC recommends that employers “[t]rain supervisors to respond quickly and reasonably, and especially warn them not to take adverse actions against those who speak out against abuse.”
• If an employee is charged with domestic violence, place the employee on paid or unpaid leave while conducting the appropriate investigation.
• The first priority is to ensure the safety of employees and customers.
• Any investigation should be independent and determine whether the employee’s conduct makes the individual fit or unfit for the current position.
• After the investigation, if termination is necessary, the employer should have the necessary documentation to support the decision.
• Develop response plans with internal security forces on how to respond to potential threats.
• In conjunction with internal security, partner with local police on prevention training and additional workplace monitoring, if needed.

Reference: http://www.insidecounsel.com/2015/12/23/workplace-conflicts-how-involved-must-an-employer?slreturn=1453867775