Employee Blog Creates Employer Liability

A California Appeals Court confirms in Espinoza v. Orange County an employee’s disability harassment claim based in part on a co-employee’s off-work blog.
Plaintiff filed a complaint against the county government defendant for discrimination based on disability, harassment based on disability, retaliation, and failing to prevent harassment.
When plaintiff was born his right hand had no fingers or thumb but contained only two small stubs. He was generally able to function although he could not perform some tasks such as holding a knife or fork with that hand. He was self-conscious about people seeing it and often kept his hand in his pocket.
An anonymous blog posted, among other things, “I will give anyone 100 bucks
if you get a picture of the claw. Just take your hand out of your pocket already!!!!!!!!!!!!!!”
The employer was aware of the blog, tried to investigate whether county computers were used in the blog posting, but failed to take reasonable steps to stop the in-work harassment.
A jury trial resulted in an award of $820,000 in damages, $320,000 in lost earnings, and $500,000 for mental distress.
Even though this case rests on California harassment law, the factual scenario of off-hours employee blogs involved in cyber bullying and harassment may not be that uncommon.
The case is particularly troubling to employers when contrasted with the recent NLRB cases against employers who fired employees for private Facebook activities.
While there is no general duty for employers to monitor their employees’ private internet behavior in employee blogs, this California case highlights that the duty to investigate at-work complaints of harassment can create a troubling set of apparently conflicting  duties and limits on the employer.

A carefully crafted internet policy and prudent consultation with employment counsel during an harassment investigation are recommended for employers stuck between such a rock and a hard place.

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