Are you tired of the press surrounding the Steven Slater incident with his employer, Jet Blue? The coverage of Mr. Slater’s airplane exit due to apparent stress, and becoming fed up with an airline passenger, has been nothing short of remarkable. Even his employer acknowledged the craziness of the situation through a blog post on its own web site: “It wouldn’t be fair for us to point out the absurdities in other corners of the industry without acknowledging when it’s about us.” And clearly, the final stanza of that employment sonata was never really in doubt.
However, the challenging cases are the ones that are not so extreme. It is unlikely that one of your employees will be opening the cabin door to your office at 30,000 feet. One can dismiss the Slater story as just the latest introduction to America’s new reality show star, and be thankful that no one really got hurt. Or, it can be a good lesson for those interested in social media and employment law.
In other words, it is just as possible that an employee will express some acute stress or anger in a different way than Mr. Slater did. For example, an employee can express anger or outrage generally or toward a particular co-worker in a blog post, on a social networking site, or a company’s intranet. The stress caused by the troubled economy, or even a discrete tragic event such as 9/11, may lead to an increase in the number of employees whose productivity diminishes, and who may find social media as an easy and available outlet. Additionally, increased stress coupled with the significant time spent in the office could provide an inappropriate portal to harassment or violence in the workplace. If and when an employer becomes aware of an employee’s expression through social media, some measure of care should be taken before the employee’s words (and, perhaps the employee) are summarily dismissed.
It is readily acknowledged that employers do not have to provide a stress-free work environment. Moreover, claims that one suffers from stress due to the personality of a particular supervisor have not been well-received by courts. However, under statutes such as the Family and Medical Leave Act (“FMLA”) and the Americans With Disabilities Act (“ADA”) (and their state and local counterparts), stress-related conditions and their manifestations may be protected either as a “serious health condition” or a “disability”, depending on their nature and severity, thereby thrusting the employer into a necessary course of action.
Indeed, effective January 1, 2009, the ADA Amendments Act requires that the term disability “be construed broadly,” thus potentially affording greater rights to a greater number of employees. This year alone saw an increase in stress-related claims. For example, in Pacenza v. IBM Corp., a terminated employee claimed he had a disability (post traumatic stress disorder) which manifested itself in, among other things, a compulsion to look at sexually explicit pictures on the Internet at work. In Millea v. Metro-North Railroad Co., a court held that a jury properly found that an employee with a history of post traumatic stress disorder was entitled to rights under the FMLA after suffering an intense panic attack from a threatening call received from a supervisor.
Employer Take Away: What should every employer take away from this development?
(1) Be aware of signs that an employee may be engaging in behavior or expression that could be considered protected under the law. Employers are not required to be mind readers, and the obligation will be on the employee in most cases to provide adequate notice to the employer of a particular condition and the need for some response or assistance from the employer. However, social media has afforded employees a greater microphone for expression and greater security “behind the computer”, when they might not have expressed similar feelings in a personal, one-on-one setting. Employers should have adequate policies in place, and should effectively train supervisors and managers to understand the implications of certain employee expression and the need to consider how the company should respond.
(2) Do not quickly dismiss employee expression through social media as being that of a “rogue” employee, or an employee who may just be letting off harmless steam on that particular day. Employers, and particularly their supervisors and managers, need to understand what to look for, what their legal obligations may be, and the consequences of not following the law. Notwithstanding what may appear at first blush to be someone looking for his or her 15 minutes in the spotlight.