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Not everything workers post online is protected

by on
in Discrimination and Harassment,HR Management,Human Resources

No doubt you have heard about the Facebook posting cases in which employers have been sued for punishing employees for their social net­work­­­ing activities. Some decisions make it seem like employees can post anything they want.

Fortunately, that’s not true. While you shouldn’t punish employees who complain about working conditions, you don’t have to tolerate workers who violate confidentiality rules.

Recent case: William Harden was the internal affairs investigator for a detention center when the father of an inmate told him that the center director was “sleeping with his staff.” Apparently concerned about potential sexual harassment liability, Harden launched an investigation.

He then drafted a confidential report that concluded the director had sexually harassed a nurse who worked for a vendor. Harden presented the report to the county executive, who concluded the detention center director had done nothing wrong.

That’s when Harden mailed a copy of his confidential report to the county council—and began posting information from it on his personal blog. The county suspended him while it reviewed the case.

While he was suspended, the county eliminated Harden’s position. When he was eventually ­reinstated, he got a different, lower-ranking job that still provided the same benefits and pay as his old one.

Harden sued, alleging his assignment to the new job was retaliation for engaging in protected activity. He alleged that mailing the report and blogging about it were protected activities because he was raising sexual harassment at the center.

The 4th Circuit Court of Appeals disagreed. It said that posting confidential records was not protected, nor was disseminating documents that an employer could reasonably expect to be confidential. (Harden v. Wicomico County, et al., No. 10-1734, 4th Cir., 2011)

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