Most of the people are aware of the laws protecting employees from harassment and discrimination but very few know that there are also laws protecting employees from retaliation. In this digital era, the social media is increasingly being used by the employees for complaining about their employers or employees. Consequently, employment-law retaliation claims, concerning social media activity, has also gained prominence. In light of certain laws, the employers need to think about their social media policies carefully to avoid legal liabilities.
Retaliation can be defined as an employer punishing an employee for engaging in legally protected activities. The punishment can include any adverse action like firing, demotion, salary reduction etc. Defining employer’s action as negative could be difficult sometimes and in such cases, as per the U.S. Supreme Court, the court must weigh the circumstances carefully. For instance, a change in job shift may not seem objectionable for some employees but for a parent with children it could be detrimental.
Protection Against Retaliation
Retaliation has been the most frequent employment-law allegation in Equal Employment Opportunity Commission (EEOC) charges in recent years. In August 2016, a revised guidance on retaliation was issued by EEOC that explains conduct protected against retaliation. Under Title VII of the Civil Rights Act of 1964 (Title VII) proper retaliation claims must meet three elements:
- Employee’s engagement in legally protected activity
- Adverse employment action
- Connection between the protected activity and adverse action
Types of Protected Activity
Protected activity can be divided into 2 categories: Participation and Opposition. Participation includes employees filing complaints either internally or in an external body like EEOC. Participation and cooperation in EEOC investigation or serving as witnesses is also protected under the federal law. Protected participation doesn’t require the employee to have a reasonable belief that the charge is valid. Consequently, making false statements knowingly can also be a protected activity.
Opposition to protected activity includes opposing any unlawful practice like unsafe working conditions at the workplace. Unlike participation, the opposition should be reasonable and should be based on good faith. Irrespective of the inconsistent court opinions any opposition, based on EEOC policy, is protected under the law.
Privacy Protection for Employees
Social media forms a major platform for discrimination and harassment claims in recent times which, in turn, could often lead to retaliation. In light of the events in this digital era, the court can also take social media posts in the serious account to protect the privacy rights of an individual or prevent abusive litigation tactics. While the courts are busy in dealing with disputes pertaining to the use of social media, legislators are busy in formulating laws that address such emerging issues and focus on the privacy rights of employees.
From Employer’s Perspective
With heightened social media communications, there has been an increasing number of employee complaints regarding discrimination, harassment, privacy violation, defamation and more. However, employers are also concerned with protecting their potential customers and reputation. Currently, there is no one-size-fits-all solution for social media policy that can protect employers’ interests as well as employees’ rights. In this changing legal scenario, employers must take legal advice from an attorney, experienced in both employment law and social media, before taking any action. It is also advisable for the employers to adopt a social media policy and review it regularly to ensure compliance.