By Desiree Moore, Partner at K&L Gates, LLP; Erinn Rigney, Associate at K&L Gates LLP; and Claudia Marina Velasquez, Associate at K&L Gates LLP
With the advent―and now prolific use of social media across age, gender, race, and other demographics―cyber harassment is equally prevalent, and an issue of great concern. A January 2020 survey found that 44% of adult internet users had personally experienced some kind of online harassment.[1] The digital harassment of individuals can take a serious toll, often impacting a victim’s personal, professional, financial, and emotional well-being. But cyber harassment has broader implications: in recent years in particular, this harassment has included, in many instances, the targeting of the individuals’ friends, family, and even their workplace.
In an instance where digital harassment against an individual extends to the workplace, either as to coworkers or the employer itself, a proactive, engaged, and coordinated response is imperative. By way of example, the employee of a major financial institution was being harassed and threatened online in a relentless campaign by an acquaintance seeking to extort money from the employee. When the employee did not acquiesce, the bad actor turned to harassing and embarrassing the employee through her employer (including making false statements about the employee to her employer) and threatening the employer. Despite the subject matter being sensitive (it is not always easy to come forward and explain this to an employer), the employee shared the background and context so the employer had a better understanding of the gravity of the situation.
From there, the employer took swift action, both on behalf of itself and of the employee, by sending a strongly worded cease and desist letter to the bad actor that made clear the bad actor was now up against not simply an individual, but a company as well. Additionally, in this instance, the employer was able to retain separate counsel for the employee who successfully secured a restraining order against the bad actor and provided physical security for the employee for the duration of the matter. This example is instructive of how employers and employees can work together to address digital harassment directed at employees and their place of work. In particular, the following steps serve as a useful guide:
First, the employer should assess the magnitude of the situation, including discussing the matter with the employee where appropriate. The more the employee can share, to the extent comfortable doing so, the more helpful an employer can be―and employers would be well advised to assure employees that any concerns of this nature will be taken seriously (in fact, training on best practices in the face of digital harassment, provided in advance of any incident, would help facilitate productive discussion and action if and when a situation arises). If the dispute appears to be personal in nature or does not rise to the level of an incident that could harm the employee, the employer stepping in may only serve to escalate the matter. As part of its obligation to provide a safe workplace, employers should also evaluate if the harassment could lead to physical violence and the impact the conduct may have on the security of the workplace.[2] Regardless of the type of action the employer decides to take, it should not disclose any confidential information shared by the employee to those who do not have a need to know under applicable law. Second, where the matter is directly impacting the workplace, the employer should consider employing a legal strategy that involves the employer directing correspondence (a cease and desist or demand letter, for example) directly to the bad actor. This serves as a signal to the bad actor that they are up against something bigger than perhaps originally intended.
Third, where warranted or feasible, the employer should consider retaining legal counsel on behalf of the affected employee so the employee may speak to their counsel with the benefit of attorney-client privilege that the employer would not necessarily be privy to. This practice ensures better representation and protection for the employee, including the employee’s ability to speak openly with their counsel. Where an employer does not have the resources to retain legal counsel on behalf of the affected employee (for example, if the employer is a non-profit organization where additional legal fees are not in the budget), both parties may explore pro bono options where legal services are offered at no cost. Employers and employees can also liaise with social platforms directly to request that any harmful or harassing content be removed. Most social platforms have user-friendly “Report” or “Contact Us” mechanisms that affected employers (and employees) can use to remove offensive content on their own.
Any action taken by the employer or employee should be coordinated, and at times done in parallel. For example, a cease and desist letter from the company could be issued simultaneously with the appropriate employee action (restraining order, reporting to the police or FBI, appealing to social media platforms to remove harmful content, moving out of their home if their physical safety is in jeopardy). This united front is protective of the employee and can be more effective than any one action on its own.
Further, as part of their response to cyber harassment of an employee, employers in Illinois should remind affected employees of their rights under the Victims’ Economic Security and Safety Act (VESSA),[3] which allows employees who are victims of domestic, gender, or sexual violence (or who have family or household members who are victims of such violence) to take up to twelve weeks of unpaid leave per any twelve month period to seek medical help, legal assistance, counseling, safety planning, and other assistance. Further, employers must not discriminate or take adverse action against an employee who is the victim of cyber harassment. When returning from leave, employees are entitled to be restored to the position held by the employee prior to taking leave or to an equivalent position with equal benefits, pay, and other employment conditions. VESSA was designed to aid in reducing stalking and sexual and domestic violence by helping victims remain financially independent and reduce economic consequences when attempting to leave life-threatening situations.
In short, digital harassment often extends beyond the primary or intended victim. Employers may find that they, as well as their workforce, are increasingly the target of an employee’s harasser. Fast action by the employer, in coordination with the employee, including taking a proactive legal approach where warranted, can be effective in silencing the offender and enabling the victim to move on with their lives.
[1] Joseph Johnson, Share of adult internet users in the United States who have personally experienced online harassment as of January 2020, statista, https://www.statista.com/statistics/333942/us-internet-online-harassment-severity (last visited Sept. 22, 2021).
[2] The General Duty Clause of the Occupational Safety and Health Act, 29 U.S.C. § 654.
[3] 820 ILCS 180/1 et. seq.
