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Cyberbullying in the workplace can put employers at risk

Legal News Reporter

Published: February 1, 2016

It’s a common form of intimidation used by teenagers and other school-aged children, but according to some legal experts cyberbullying has not only graduated to the workplace, the allegations are being used to support employment discrimination and harassment lawsuits.

Roetzel & Andress labor and employment law associate Nathan Pangrace said the firm is noticing an uptick in such charges filed by members of protected classes.

“Anti-discrimination laws forbid discrimination or harassment based on race, national origin, gender, age or a disability,” said Pangrace.

“Any time you have an employee in one of those protected categories who is receiving threatening or harassing comments by text, email or social networking, this activity can be used as part of the basis to prove a discrimination or harassment lawsuit,” said Pangrace.

If an employee brings the problem to the employer’s attention and the company fails to address the issues, Pangrace said this could put the business at risk.

“However, even if there is no liability at stake, addressing the issue makes good business sense,” Pangrace said.

While bullying in the workplace is nothing new, he said cyberbullying is rising simply because employees now use emails and texts more often to communicate with one another.

“Cyberbullying can be easier because there is no face-to-face communication and an employee can send nasty messages from the safety of his/her computer.

“The person doing the cyberbullying can also seek to be anonymous by using an alternate name,” Pangrace said. “However, this does not always work since the person receiving the messages can often identify who is sending them based on what is being said.”

In fact, he said a few months ago, an employer was sued after its employee made threats to a co-worker via Facebook under a fake name. “The co-worker reported it to police and police tracked the computer to the employer’s office,” Pangrace said.

According to Neil Bhagat, an associate at Buckingham, Doolittle & Burroughs, currently there are no federal laws that directly address the issue of bullying or cyberbullyng. However, he said various groups are working to change this.

In Ohio, Pangrace said the crime could be prosecuted under the state’s telecommunications harassment law (2917.21) in cases where a person anonymously uses a telecommunication device like a phone to send a text or make a call for the purposes of harassing or threatening a victim. 

He said charges could also be filed under Ohio’s “menacing by stalking,” code (2903.211), which contains a provision stating “No person, through the use of any electronic method of remotely transferring information, including, but not limited to, any computer, computer network, computer program, or computer system, shall post a message with purpose to urge or incite another to commit a violation of division (A)(1) of this section.”

Additionally, in 2012 Gov. John Kasich signed the Jessica Logan Act or House Bill 116, which defines electronic bullying and requires schools to establish anti-bullying policies.

Bhagat said recently clients have been reaching out to him to determine what their legal obligations are in cases of cyberbullying.

“When bullying occurs on the premises and employers become aware of it, employers likely have an obligation to become involved,” said Bhagat. “But when incidents occur outside the workplace during off hours, it is more of a gray area.

“If an employee is using Facebook to repeatedly ‘bully’ another employee after hours and the employee brings it to the attention of the employer, the employer needs to investigate the claim to determine what steps to take.”

Bhagat and Pangrace advise employers to insert information pertaining to bullying and cyberbullying into the sections of their workplace policies that deal with anti-harassment and communication.

They say the topic of cyberbullying should also be included in the “Acceptable Use of Technology” by personnel policy, especially in cases where the employer issues workers cell phones or laptops.

“Once these policies are in place, they must be communicated to all employees at the time of hire and throughout employment,” said Pangrace. “Training should also be provided to management and staff.

“Unlike other forms of bullying, cyberbullying leaves behind a trail of evidence that is generally easily discoverable, should the employee file a lawsuit,” said Pangrace.