When Employees’ Bad Behavior Gets Posted On Social Media
By Hali Anderson
By now, most of us have heard of the now-infamous Google Memo. Authored by James Damore, a former engineer for Google, the memo argued that the lack of women in engineering jobs was, at least in part, due to biological differences between men and women, which made women less well-suited to be engineers. Specifically, Damore stated that women are more neurotic and less capable of handling stress. In one version of the memo, Damore also posited that because Google hired from the top of the intellect pool and men occupied more of that space, men tended to be hired more.
Damore first submitted his memo to HR and then posted it on several internal message platforms hosted by Google. At some point, someone leaked the memo externally and it went viral. Days later, Damore’s employment with Google was terminated for “reinforcing gender stereotypes.” Damore is now suing Google, claiming that he was discriminated against for being a conservative white male. The 160-page complaint includes over 100 pages of screenshots showing posts on internal message boards that Damore claims he found to be offensive and supportive of his claims.
Elsewhere in the country, hundreds of people traveled to Charlottesville, Virginia, to attend a white-supremacist “Unite the Right” rally. Participants marched in the streets, carrying torches, chanting phrases such as “Jews will not replace us.” After the rally, a Twitter user who goes by the handle “Yes, You’re Racist” began revealing and posting to Twitter the identities of those who were filmed or photographed attending the rally. As a result of these revelations, at least four people lost their jobs.
Also in Virginia, Juli Briskman was riding her bike one morning when the Presidential motorcade passed by her on the street. As the motorcade passed, Briskman put up her middle finger as a show of her disdain for the President. A photographer traveling with the motorcade snapped a picture of Briskman and it quickly went viral. Briskman even put the put the photo as her profile picture on Twitter and Facebook. Days later, her employer, a Virginia-based federal contractor, told her that they were terminating her employment because it could hurt the company’s reputation as a government contractor.
Recently, Latham & Watkins Chairman Bill Hoge resigned after it was discovered that he had been sending lewd and threatening text messages with a woman he encountered through his work with a Christian men’s group. The woman was completely unaffiliated with Hoge’s firm. Nevertheless, the firm’s executive committee concluded that, while not unlawful, Hoge’s conduct “was not befitting of a leader of the firm,” and asked him to step down.
And just this past March, an article was published in East County Magazine, detailing a $15,000 settlement that was reached between Lemon Grove Council Member Jerry Jones and Lemon Grove City Manager Lydia Romero, on the one hand, and an individual named Marcus Bush, on the other. Bush alleged Councilman Jones and City Manager Romero violated his free speech rights and retaliated against him for comments he’d posted on social media criticizing Jones. The settlement agreement explains that Bush was a former employee of Rick Engineering who performed community outreach work related to the Lemon Grove Downtown Specific Plan for Rick Engineering on behalf of the City of Lemon Grove. In July 2017, Bush made a comment on Facebook stating that Jones had “thinly veiled racist tendencies.” Jones responded to the comment by contacting Romero and inquiring about the plaintiff’s work representing the City of Lemon Grove. Romero followed up on Jones’ inquiry and plaintiff’s comment. After discussions with Romero, Rick Engineering ceased using Bush under his temporary contract. As part of the settlement, both Jones and Romero issued apologies to Bush saying they respected Bush’s right to criticize public officials on public platforms and social media; and also apologized for any adverse impact that had occurred to his employment.
In a world where social media and technology consume employees 24/7, what was once private has become public, and it has made its way into the workplace. James Damore’s memo most likely would have stayed within the confines of HR had he not posted it to Google’s internal message boards. The Charlottesville rally attendees’ identities would have largely remained unknown if not for the ability of technology to identify these individuals and circulate the identities with the click of a mouse. Juli Briskman’s photo might have remained a local news story if her photo hadn’t found its way to Twitter and Facebook. Ex-Chairman Bill Hoge’s story might have been a he said/she said scenario if there weren’t a thread of text messages memorializing his bad acts. If Marcus Bush kept his thoughts private, Councilman Jones would likely never have heard them. While Damore’s conduct occurred at the workplace, the other three examples did not. Yet, all of these individuals suffered the same fate.
So, what is an employer to do in these situations? What happens when an employee’s conduct, while not necessarily directed toward a co-worker or even potentially related to the workplace, is found to be offensive to the employee’s colleagues?
The first step is to do a prompt and thorough investigation. If the investigation confirms that the alleged conduct did indeed take place, the next step is for the employer to determine what action to take in response. Employers should first ask: Is this employee’s conduct unlawful? Unlawful conduct is grounds for termination. If the employee’s conduct is not unlawful, the next question is: Was the employee’s conduct in violation of company policy? Perhaps the conduct violates the company policy on respect? Or the social media policy? If the conduct does violate a policy, the next step is to determine whether the policy at issue has been applied consistently. This is a good example of why it is imperative to get HR involved in all decisions because HR will have the historical knowledge of how the company has responded to various issues, across departments. And finally, if the conduct is not unlawful and if it does not violate a company policy, is there still some reason that the greater good is worth the risk? Does the company want to make a statement? Avoid or attract a certain type of publicity? What does the company stand for?
These are questions that employers grapple with every day. And if you haven’t had one yet, you can be assured it is coming. If an employer wants to be proactive, it should invest in in-person training for all employees so that people understand the employer’s vision, expectations and scope of discretion. Employees need to understand that there can be consequences for their actions, regardless of who it is directed at or where it occurs. That training should involve real-life examples like the scenarios detailed above. Employers should also review their handbooks and/or other company policies to make sure they are expansive enough to keep up with the constantly changing face of technology.
Hali Anderson is a senior associate with Wilson Turner Kosmo LLP.
This article originally appeared in the May/June 2018 issue of San Diego Lawyer.