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EMPLOYERS CAN’T AFFORD TO IGNORE MALICIOUS OFFICE GOSSIP

According to conventional wisdom, office gossip is an essentially harmless fixture of the workplace. Employers often ignore gossip because it is so pervasive; and managers, too, can get caught up in the chatter because everyone has a basic curiosity about people with whom they come in regular contact. Although some forms of gossip may be innocent, there is no question that when gossip is malicious, it has crossed a dangerous line. Malicious gossip destroys employees’ morale and productivity and exposes both individuals and employers to liability on several fronts.

Malicious Gossip – What is it?

Even though there may not be a strict legal definition of “malicious gossip," employers should be aware of the characteristics that make gossip pernicious and that lead to the legal claims discussed below. An employee who communicates information about another employee with the desire to inflict injury or harm on the other is engaging in malicious gossip. The same is true of an employee who spreads rumors about a coworker’s personal or professional life that are untrue.

Why do people engage in malicious gossip?

Employees who traffic in malicious rumors and gossip are, in effect, workplace “bullies." Bullies behave in an aggressive, hurtful manner to compensate for feelings of inferiority, powerlessness and fear. By denigrating others, the gossipmonger hopes to gain a sense of power and control over others.

What liability may result from malicious gossip?

Harassment under FEHA and Title VII

Malicious gossip may be actionable under laws protecting employees from workplace harassment. Under the California Fair Employment and Housing Act (FEHA) and Title VII of the Civil Rights Act, a plaintiff may recover for workplace harassment if he or she were subjected to conduct based on plaintiff’s protected status, the conduct was unwelcome and the conduct was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment. (Cozzi v. County of Marin (N.D.Cal. 2011) 787 F. Supp. 2d 1047, 1069-70.) Thus, for example, if an employee rejects the romantic advances of a coworker, and the coworker then repeatedly spreads false information in the workplace about the employee’s personal life, the employee may have a claim for sexual harassment. Further, the coworker may be personally liable for harassment under FEHA, and the employer strictly liable if the coworker is a supervisor. (Cal. Gov. Code 12940(j)(1), (3).)

Defamation

Malicious gossip in the workplace may lead to a claim for defamation. To state a claim for defamation per se, the plaintiff must show the intentional publication of a statement of fact that is false, unprivileged and has a natural tendency to injure or which causes special damage. (Reese v. Barton Healthcare Systems (E.D. Cal. 2010) 693 F. Supp. 2d 1170, 1188-89.)

Take, for example, a recent case in which a plaintiff alleged that she had been defamed when a coworker referred to her as a “pole dancer" while discussing plaintiff’s worker’s compensation claim with the third party claims administrator. The court held that plaintiff’s suit for defamation against her employer survived a motion for summary judgment. Because the coworker’s statement was made during the course of her employment, and was not privileged under California Civil Code section 47(c), the employer could be held liable for the statement under the doctrine of respondeat superior. (Reese v. Barton Healthcare Systems, supra, 693 F. Supp. 2d 1170, 1191-92.)

Invasion of Privacy

Gossip in the workplace may give rise to the tort of invasion of privacy under the California Constitution. To prevail, a plaintiff must show the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) a serious invasion of the privacy interest. (Hernandez v. Hillsides, Inc. (2009) 47Cal. 4th 272, 287.) For example, an employee who has access to confidential personnel records and who gossips with coworkers about the information in those records may be found to have invaded the privacy of those persons whose records were disclosed.

National Labor Relations Board Prohibits Restraint of Employees’ Discussion of Terms and Conditions of Employment

Notwithstanding the potential for liability inherent in workplace gossip, employers must refrain from issuing broad restrictions on employees’ work related gossip. To comply with recent direction provided by the National Labor Relations Board on employees’ use of social media, employers generally may not prohibit employees from making disparaging remarks about the employer or a supervisor if the remarks are made in the course of “protected, concerted activity" with other coworkers concerning the terms and conditions of employment. (See Office of the General Counsel, MemorandumOM 11-74 (August 18, 2011).) Thus, it is permissible, for example, for employees to discuss, through social media, coworkers’ job performance and company staffing levels if done in preparation for a meeting with management to discuss working conditions.

Recommendations for Employers to Address Malicious Gossip

Workplace Policies and Practices

• Seek the advice of legal counsel to craft a carefully drawn policy defining unacceptable gossip, and imposing discipline, including termination, for violation of the policy. The policy should also include narrowly tailored parameters for the use of social media as it relates to the workplace, in compliance with NLRB dictates and First Amendment protections.

• Encourage employees to vent frustrations in an appropriate manner.

• Managers should model appropriate behavior by not engaging in gossip themselves.

Investigation

• If gossip has crossed the line and may violate applicable policies or law, promptly initiate an investigation into the matter.

• Interim measures should also immediately be instituted to prevent any further offending conduct while the matter is being investigated.

Elizabeth Ison is a California employment law attorney with The Ison Law Group. [email protected].

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