Protecting Your Business from Harassment and Bullying Allegations in the Digital Era
REPRINTED FROM THE HARTFORD
How often do you reach for your cell phone?
Chances are it’s several times a day. For a call, a text, to check the local weather or find a nearby eatery for lunch, our phones have become the catch-all for our daily needs. They have also made everyone available 24/7, delivering news and information and, yes, even providing a means for people to harass and bully others via social apps.
“Research shows a significant increase in people experiencing harassment or bullying through social media and online platforms,” relayed Jennifer Barbee, head of middle market management liability, The Hartford.
“With the rise of social media platforms like TikTok, Instagram and X (formerly Twitter), there are more channels and avenues for people to feel intimidated or to share inappropriate or unwanted information and images.”
While this is disconcerting for society, it should be top of mind for companies as well. If an employee is consistently engaging in behavior that is deemed unwelcome or unwanted by a colleague, it can become a material concern for their employer.
For this reason, employers are going to want to make sure their employment practices liability (EPL) insurance — which is designed to cover incidents of harassment in the workplace — is equipped to cover employees contributing to cyberbullying, discrimination or harassment online. Employers should seek out EPL coverage that specifically includes wrongful acts that occur via social media or social networks, such as the EPL policies within The Hartford’s recently released Private Choice Preferred suite of coverages.
Challenges of 24/7 Access
Over 300 million individuals regularly engage with social media, averaging two hours of use each day. Social media is viewed as a personal platform, but more and more, users are incorporating their professional lives into it, blurring the lines between work and personal spaces.
Employers can be held liable for employees who use personal social media accounts to engage in less-than-ideal behaviors, and the incidence of cyberbullying and harassment in the workplace is on the rise.
According to one survey, the frequency of online incidents rose 57% from 2017 to 2022, and 31% of the U.S. workforce responded that they had experienced some form of online bullying. Between 14 and 20% of respondents felt they had been a victim of cyberbullying in the previous week.
From unwanted contact and offensive jokes or images to cyberstalking, suggestive comments and threats, online harassment can include a number of poor behaviors. Further, there’s a level of tone that can get lost with online speak, adding confusion and upset to situations.
“Email, texting and social media channels can be difficult to interpret in the workplace. Even with good intentions, the tone of a message can be easily misunderstood,” Barbee said. “The lack of face-to-face interaction and the inability to convey nonverbal cues in these digital communications contribute to the challenges in accurately interpreting tone and intention.”
Finally, this digital world and its full-time access to people can inspire a level of bravery that some might not exhibit in person.
“Digital platforms create a sense of anonymity and distance, emboldening individuals to say and do things they might not otherwise,” said Barbee. “The lack of immediate, face-to-face consequences can lead to more aggressive or inappropriate behavior online.”
Consequences, Consequences
Employees who misbehave online — whether on their own time or not — can still disrupt a workplace. Harassing coworkers can lower morale for more than just the people directly impacted by their actions and can lead to lawsuits. Employers can be held accountable for such behavior by employees, and a solid policy around expectations and consequences is imperative.
“Today, more people report feeling bullied, and the issue has come to light in terms of how it impacts people. Coupled with the mental health challenges that have emerged post-COVID, this has led to increased settlements. In harassment cases, the presence of pictures or other evidence, such as text messages, tends to significantly increase the settlement amount, as it moves beyond a ‘he said, she said’ situation.”
Meanwhile, nuclear verdicts, above-average settlements and social inflation have led to a challenging legal environment for all businesses.
“Society has become more empathetic to what individuals are going through, and this has contributed to the rise in nuclear verdicts in the EPLI space,” Barbee explained.
Society is pushing toward zero tolerance of harassment and bullying behavior, empowering individuals to speak out against abuse and victimization. This growing empowerment to speak out is a very noble and important practice to prevent negative events from continuing — and it’s one that has already impacted the insurance industry.
“Insurers are reassessing their risk exposure and coverage offerings,” Barbee said. “It’s highlighting the importance of having a robust policy and procedure in place to handle these sensitive situations appropriately and compassionately.”
Stopping Incidents Before They Become Allegations
Insurers’ aim is to ensure their claims processes are equipped to handle these cases with care and professionalism, which includes training claims adjusters and offering resources and support for claimants.
Employers looking to protect their workers and remain whole should be implementing strategies to keep pace with both their insurers and the changing landscape of digital harassment.
That starts with proactively setting expectations with employees around preventing cyberbullying and harassment.
Employers can do this by implementing a social media policy and including it in their employee handbooks, outlining what kinds of behaviors are not tolerated on both company-owned and personal social media accounts.
“For instance, the policy should provide guidelines on appropriate behavior when interacting with colleagues on social media platforms. It’s important to remember that even on platforms like Snapchat, where content disappears, inappropriate comments or pictures can still be reported and have consequences,” said Barbee.
Defining what harassment and bullying look like in text, images and comments made via social media will also show employees what is not acceptable behavior online.
Perhaps the most important element of company procedure is to provide guidelines for reporting and responding to incidents should they occur. It is imperative that employees coming forward feel heard and safe when voicing their concerns.
“It is not appropriate for a business to dismiss allegations purely because they happened outside work hours or on personal accounts,” Barbee said. After all, the matters that tend to be more significant and costly for companies are those where allegations are dismissed.
“Taking complaints seriously and having a well-defined process for addressing them can help mitigate potential risks and create a safer work environment,” Barbee said.
As always, having adequate insurance is just as important, including shoring up EPLI coverages. According to Barbee, the EPLI market is currently classified as a soft market based on its significant capacity, pricing, and broad terms and conditions.
“It’s important to educate employers and businesses about the potential exposures they face, regardless of their size,” Barbee added. “Some companies still believe that their familial atmosphere or the state’s at-will employment laws protect them from lawsuits, but they must be prepared to defend against allegations of harassment or discrimination.” &