The constant and evolving release of new apps used by employees both personally and in the workplace continue to present challenges to employers in the implementation and execution of workplace policies designed to protect employees, particularly those involving sexual harassment, anti-discrimination and bullying. These challenges are no longer limited solely to social media websites such as Facebook, Instagram, Linkedin and the like. Indeed, bulletin board apps enable employees to post comments to public message boards. Regardless of the stated purpose of an app designed to allow workers to communicate about the terms and conditions of their employment, employees’ use of these platforms may result in inappropriate conduct that violates other employer policies.
Employers are beginning to see an increase in harassment complaints stemming from employees’ use of apps. In particular, apps that create message boards onto which employees add individual comments often result in an increasingly hostile thread of negative or threatening comments. The “piling on” of comments often leads to online bullying or shaming that translates into workplace discord or legal claims of harassment or discrimination.
The NLRB’s protection of speech occurring on social media platforms is well established. Indeed, as previously posted, the Second Circuit held in Three D, LLC d/b/a Triple Play Sports Bar and Grille v. National Labor Relations Board that employees’ Facebook postings are protected under the National Labor Relations Act. There has not, however, been significant judicial guidance regarding the implications of employees’ use of apps in the workplace that result in harassment or bullying claims. These evolving technology and resulting legal issues warrant review by employers to defuse potential workplace conflict stemming from the often intersecting areas of personal and work-related speech.