OFFICE GOSSIP

by Bob Gregg

Every work place is going to have some gossip. In fact, the "rumor mill" can be an important informal communication channel and a "steam valve" for tensions.

It can also go "over the line" and do great harm to people. Malicious gossip damages careers, reputations and even health. That harm can also result in lawsuits for defamation, invasion of privacy, harassment, malicious interference with employability under Wis. Stat. §134.01 and Workers Compensation claims for physical and emotional injury. Both the employer and individuals involved can be found liable for the damages.

Defamation of Character

Defamation is false information (spoken, printed, electronic) which injures another person. In employment situations, this may be allegations of wrongdoing or incompetence that substantially harm one's reputation or associations with others. The "injury" is usually discharge, or non-hire, due to a "bad reference," though there are other injuries such as harm to reputation, career advancement or "ostracism" which can also give rise to defamation cases. Defamation is a "tort" under state law and can also be brought as a "liberty" issue under 42 U.S. Code §1983 against government agents or supervisors.

There are three basic types of defamation:

1. The information was known to be untrue; or
2. There was reason to know that the information might be untrue and you did not bother to adequately check; or
3. The information was so broadly over-generalized as to be untrue.

Invasion of privacy claims in employment generally arise when managers go too far beyond job relatedness or gather job-related information in an unreasonable way. Some areas currently giving rise to privacy cases are: drug testing, physical searches, locker searches, personal parcel searches (lunch box, purse, backpack), employer surveillance, E-mail and telephone monitoring, and breach of confidentiality. (A list of privacy laws can be found at the end of this article.) Privacy cases generally involve one of three sorts of issues:

1. Looking into non-job-related private life; Delving too deeply into expectations of privacy; and
2. Making private facts public.

Harassment

Harassment is unwelcome attention based on "protected status" under the discrimination laws. It can include ongoing statements and rumors which harm one's career, reputation, and relations with others. Examples include ongoing comments about someone's sexuality, supposed sexual activity, or negative comments about their sexual orientation.

Wisconsin also has "general harassment" statutes, Wis. Stats. §§813.125 and 947.013, which prohibit an ongoing pattern of personal attacks or the revealing of certain confidential records information. There are criminal penalties under this law.

Wis. Stat. §134.01 prohibits "two or more persons" from "malicious injury to another in his reputation, trade, business or profession . . . " This can cover intentional, malicious gossip which can be predicted to cause tangible harm in the work place. There are civil and criminal penalties.

Workers’ Compensation covers physical and emotional injuries in the work place. There are situations in which emotional damage and health effects such as high blood pressure, weight loss, heart attack, and even suicide have been found to have resulted from being the target of prolonged malicious work place gossip and its job-related effects.

One problem with rumors and gossip is that they are designed to grow and change and get more negative as they are passed along.

The statement: "Jane talked to her union steward because she didn't think her supervisor, Tom, did enough to stop that angry customer who cussed at her. Jane felt harassed." Changes to: "Jane filed a grievance because Tom didn't deal with the harassment." By the time it reaches the other end of the department, the rumor states: "Tom is up on charges for sexually harassing Jane!"

In one case, the original statement of, "Jack is investigating a fraud case," eventually got twisted into, "Jack's being investigated for fraud and embezzlement!"

The rumor mill can create amazing distortions. The more persistent the comments, the longer it is "kept alive" by other employees, the more energy people put into the topic, the more likely it is to go "over the line" and do harm to the person at issue.

Where is "the line?"

Human behavior does not easily fit into clear-cut categories or finite measurements. The boundaries between what is clearly okay, low-level banter and what is malicious and defamatory gossip are not always a "bright line" down the center of the road. If you are concerned about your own statements, err on the side of caution.

There are some items that are clear danger areas. People who gossip about them should know that the very nature of the topic is likely to result in harm. These include allegations that someone has:

• Committed criminal acts…

• Is an alcoholic…

• Is drug dependent…

• Has and/or is spreading a serious contagious disease…

• Committed professional malpractice…

• Committed infidelity in one's marriage or serious relationship…

• Done something considered "reprehensible" by the public. (The labels tend to change over time. In the 1950's, a rumor that one was a "Communist" could quickly ruin a career. In today's work place, the labels of "racist," "sexual harasser," or "drug abuser" can do great harm to reputations.)

• Received a promotion or other job benefits by sex, bribery or other illicit ways.

Also in the danger area are:

• Comments that reveal medical information without consent.

• Divulging negative employment information (discipline, performance evaluations, reasons for discharge) to those who do not have a need to know.

• Comments or speculation over sexuality--or lack thereof.

Sex, sexual orientation and sexual relations are sensitive areas. It is not malicious gossip to mention the known fact that two people are dating or that someone is heterosexual, gay or lesbian. The occasional innuendo or guess that people are seeing each other or conjecture about sexuality do not rise to the level of malicious gossip. However, consistent, on-going speculations and discussion about these issues do go over the line. Overt joking and overt descriptions about other people's sexual practices, partners and orientation are automatically offensive and hurtful; these actions can be predicted to do harm. These areas are "nobody else's business," and ongoing, overt discussions and comments can easily move into the privacy, defamation or harassment areas.

These are the more obvious areas of concern. Other sorts of gossip can also cross the line. Any time that someone is singled out as the regular butt of jokes or the topic of ongoing derogatory comment, there is a potential problem. If the negative attention is about non-job-related private life, character, personality and relationships, there are grounds for concern.

Even ongoing rumors and overt griping about another employee's job performance and on-the-job behavior can become malicious and do damage. It is understandable that co-workers and supervisors become frustrated when someone doesn't pull their weight or has disruptive behavior. It can be appropriate to verify observations of performance or behavior problems with co-workers or supervisors. It is not appropriate to turn the frustration into a pattern of gossip or openly-frustrated office commentary.

The correct place for a supervisor to take those frustrations is to other managers who have the power to help do something. A supervisor should not "vent" to the co-workers of the person at issue. The appropriate place for co-workers to take their observations and frustrations is to management or union officials. It should not be turned into an open airing or venting within the rest of the work place. An employee may have performance problems, a difficult personality, or problem behavior. That does not give the rest of us the right to make them into a "public spectacle" for "public humiliation."

Managers’ Responsibility

Clearly managers should not promote or engage in vicious gossip, defamation, or invasion of privacy. However, it is not enough for a supervisor to just "stay out of it."

Management has an active obligation to stop "over-the-line" gossip. This is exactly the same sort of obligation that managers have to stop unwelcome harassment they "know or should know about" under the anti-discrimination laws; this just extends the obligation beyond discrimination into the realm of defamation, privacy and public humiliation.

Once you know your work place is being used to spread ("to publish") invasive, humiliating or defamatory information, there is a duty to act to stop the behavior.

This does not mean that you have to go around "listening in" and "monitoring" your employees' break talk, coffee chat and private conversations. (Too much of that can be an unfair labor practice as well as invade their privacy.) This does not mean that you have to "stamp out" every sexual innuendo, every comment, or every speculation about who is "interested" in whom, who is performing or not, who is drinking too much, who is "on the rocks" in their relationships, etc. The occasional non-overt commentary does not generally create a "hostile environment" or trigger a privacy or defamation issue. It is the ongoing, regular commentary that does.

Some pointers to follow:

1. If you hear gossip regarding anything on the "danger areas" list, check it out. It is cause for concern and may be a reason for action to stop the gossip.

2. If a negative topic about a person has "taken on a life" and won't die off, check it out. It is now a "persistent" topic of gossip and ripe for being "over the line."

3. Any overtly nasty or graphic comments are grounds for intervention. "Slurs" of a personal, racial, sexual, ethnic, or religious nature should get immediate attention.

4. Don't openly "bad mouth" employees you are frustrated about. Talk to other managers about your concerns and frustration, but not to the person's co-workers. Keep all of your sensitive employee information (hiring, discipline, performance evaluation counseling) within the "Qualified Privilege" (attached).

5. Stop any speculation about a person's diseases or mental condition. (This is different from employees' discussions of concern about a co-worker who is known to be in the hospital, on medical leave, or suffering from a serious medical condition.)

6. Listen to and deal with employees' expressions of concern about the problem performance or behavior of a co-worker. Providing a management channel for the issue can prevent the build-up of frustration and prevent the resort to malicious gossip and "self help."

7. Consult with H.R. and/or EAP if you are concerned about a gossip situation, but are not sure what to do. H.R. stands for Human Resources; use it as a resource.

QUALIFIED PRIVILEGE

Employers have to gather, keep and discuss information about employees in order to effectively manage. Some of this information is "personal and sensitive." Some is negative, such as poor performance evaluations, discipline or discharge. The employee at question does not want it "spread around," harming his career and reputation.

The Qualified Privilege or "conditional privilege" as it is termed in the chief Wisconsin case, Bett v. Ploetz, 20 Wis. 2d 55 (1963), enables managers to gather and discuss this sensitive information without liability as long as one stays within the scope of the privilege.

The requirements one has to show to establish Qualified Privilege are:

1. The information is reasonably necessary for the protection of the interests of one of the parties. This criteria is automatically met by a current issue effecting someone in the scope of the organization's activities (job related). The organization has a great "interest" in finding out about and solving work-related performance problems, disability accommodations, or rule violations by its employees.

2. The scope of the inquiry is limited to what is reasonably necessary to protect the interest. This means job relatedness. Once the topic goes into family, religion, sexuality, politics, or other non-directly related areas, it has left the scope and protection of the defense, and the Qualified Privilege disappears.

3. The information is communicated on a proper occasion. This means it is a current issue within the time frames recognized by state and federal law or by internal procedures. Old, "stale" issues are not within the Qualified Privilege. Similarly, where an employer is on a fishing expedition to dig up dirt on employees for office politics or gossip, there is no Qualified Privilege.

4. The information is given to and confined to proper parties only. "Proper parties" means the small group that must process that particular issue. It can include the Personnel Manager, Affirmative Action Officer, and top Management who have a direct role in the decision making.

5. The process is conducted in a proper manner.

6. The entire process is characterized by good faith.

PRIVACY LAWS LIST

Privacy rights in employment are protected by a number of state and federal laws.

STATE LAWS

Wis. Stat. §895.50: "Invasion of privacy" includes the intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a matter which is actionable for trespass and/or publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person.

Wis. Stat. §103.15: HIV Testing, confidentiality of results.

Wis. Stat. §146.82: Patient Health Care, confidentiality.

Wis. Stat. §51.30: Mental Health, Drug & Alcohol Treatment, and 42 U.S. Code §290, Drug & Alcohol Confidentiality, provides for confidentiality of treatment records. These laws prohibit unauthorized release and dissemination of medical and treatment information, including post drug and alcohol testing counseling.

However, Wis. Stat. §102.13(2) and §103.10 Family Medical Leave Act, as well as the Americans With Disabilities Act, do give the employer a right to access and use of certain medical or treatment information when an employee reports a work-related condition; but all medical information must be kept in a separate, secured file. The 1996 Federal Health Care Reform Act, H.R. 3103, imposes civil and criminal penalties on employers (and their agents) who disclose personally identifiable health information without consent.

FEDERAL LAWS

18 U.S. Code §2501 et seq. Omnibus Crime Control Act/Electronic Communications Privacy Act (§2701 et seq.) prohibits the unauthorized interception and disclosure of wire, electronics or oral communications through the use of electronic, mechanical, or other devices. The Federal Act gives both civil and criminal penalties for violations. The Act does give employers the right to access email and voicemail in the employer’s system (not a system provided by an outside company.)

42 U.S.C. 263, Health Insurance Portability Accountability Act, Patient Health Care, and Health Insurance Privacy and Confidentiality. HIPPA protects the privacy of medical information. Requires an information management process to assume privacy and prevent improper use. The law provides for civil penalties of $25,000 per year, per violation and criminal liability.

20 U.S. Code §1232, Family Educational Privacy Act. Confidentiality of records of participants in educational programs receiving government funds (can include job training programs conducted in the work place).

18 U.S. Code §1702, Obstruction of Correspondence, Mail Privacy. It is illegal to read another’s mail before it is delivered to the addressee. An employer can be liable for intentionally opening and reading employee’s personal outgoing mail.

42 U.S. Code §290, Drug and Alcohol Confidentiality, provides for confidentiality of treatment records. These laws prohibit unauthorized release and dissemination of medical and treatment information, including post drug and alcohol testing counseling.

However, 29 U.S. Code §2601 et. seq., the Federal Family Medical Leave Act, as well as the Americans With Disabilities Act, 42 U.S. Code §12101, do give the employer a right to access and use of certain medical or treatment information when an employee reports a work-related condition, but all medical information must be kept in a separate, secured file.

15 U.S. Code §1681, Fair Credit Reporting Act, requires “accuracy, relevancy and proper utilization of information.” This act covers not only standard “credit checks” it also covers employment references and investigations and examinations where outside parties are used as gatherers of the information.

29 U.S. Code §§2001-2009, Polygraph Protection Act, prohibits most private sector employers from requiring mechanical or electronic lie detector tests except under specific circumstances and from using the tests as the sole basis of making employment decisions. The Act also prohibits disclosure of the results beyond those directly involved in the investigation and decision making. This law does not prohibit written “honesty tests” (though some states do) [but also be aware that the ADA may apply if the “honesty test” is found to be “psychological testing”].

5 U.S. Code §522(a), Federal Privacy Act, prohibits federal agencies from disclosing personnel records without the employee’s written consent. This can include improper disclosure to staff within the agency itself.