A couple of years ago emojis were the exclusive linguistic of teenage girls, but today it seems everyone’s using them.
Emojis are those vastly popular colorful cartoon digital images or icons that reside on your cellphone or tablet — and are oftentimes used to convey a message, idea, emotion or feeling in the form of electronic communication. In fact every day millions of people communicate with these smiley faces, hearts, animals, food and other icons that convey their messages.
As your resident riskologist I can tell you with a high degree of certainty that any time you introduce new technology into the workplace, and in this case a new means to communicate, there is plenty of risk exposure to go around.
It can lead to sexual harassment lawsuits, wrongful termination lawsuits and can even be misinterpreted as threats of violence to co-workers …etc.
These little Pictionary forms – the modern world’s take on hieroglyphics – have risen to socially-accepted prominence in recent years, permeating into all corners of our communications at home and at work.
Emojis have actually existed since 1999, but they weren’t fully embraced by the masses until 2012 when Apple released iOS 6. The emoji movement has since expanded to all sorts of social network sites too, including Instagram, Facebook, Twitter and others.
New exposure
Business owners, supervisors and human resource managers alike are just now experiencing a new risk exposure as these emojis are introduced into the workplace.
For instance imagine a bank teller approaching the HR manager to notify the bank that he had received a strange emoji communication from a male Muslim friend that works upstairs as a proof operator that included emoji pictures of a Muslim person, the Syrian flag, 4 ticking bombs and a bank. Is it a joke, a mistake or a threat?
The human resource manager has to make a decision, slightly over reacts and notifies the FBI. The employee is later dragged away from his work desk by the FBI and questioned for days, as the local news and then the national news networks catch wind of the event. The bank then terminates employment because they feel he has most definitely violated their workplace violence policy.
Did the HR manager over react? Maybe, maybe not? If the bank is located in San Bernardino, CA I would suspect that this exactly how most HR managers would react. But let’s say, the FBI later clears the employee of any wrong doing and the terminated employee later hires an attorney and claims that he accidently butt-dialed that text message. So now he is suing the bank for $2.5M for wrongful termination and discrimination, because he fears that he will never be able to be gainfully employed ever again. Interesting and likely scenario isn’t it?
In today’s society people have already been fired for emojis. For instance the Houston Rockets NBA team fired its social media director because he dared to post 2 emojis of a horse being shot by a gun after the Mavericks lost to the Rockets on Wednesday. The media guy’s bosses said that the gun emoji “wasn’t appropriate” and so they fired him. In my opinion this is political correctness run amuck, but it’s the world we now live in.
Expensive liability
Sexual harassment potential is another area where emoji can lead to a pretty expensive Employment Liability Claim (EPL) claims. Imagine the scenario where a female CEO overhears a conversation with a male associate down the hall of his passion for gardening and has brought eggplants into the office to give to another associate. So she later emails the employee from her phone a couple of days later and asks the employee to see his eggplant, but uses the emoji symbol for eggplant, which is the universal sexting sign for the male genitalia.
Being a little bit more fluent in the language of emoji, the male associate feels uncomfortable about this perceived sexual advancement and goes straight down the hall to human resources and files a complaint. The HR manager later sends an email to his supervisor requesting that he look into it, and the supervisor response back “Unbelievable he would complain about the color of the sky, yeah I’ll look into it and ends her reply with emoji symbol of somebody painting their nails.
As it turns out the his supervisor fails to investigate the claim and the male associate quits a week later and later files a sexual harassment claim. In discovery months later his attorney requests the email between the HR manager and the supervisor with the emoji and he later contends that the symbol is the universal sign of “don’t care” which is interpreted as I don’t have time for you and I’m going to paint my nails, because that is more important.
In hindsight the HR manager should have followed up with the supervisor to determine what that emoji sign meant, but it’s too late because the employer’s insurance carrier has decided to settle the claim out of court for a $150K and the employer is on the hook for the $75K of the deductible.
The fact is employees are increasingly using emojis as a means to express ideas, thoughts and emotions –and business owners, supervisors and managers need to wise up. Most employees have a pretty good built-in filter when it comes to understanding what phrases are inappropriate for electronic communications, but there are always those exceptional few.
By nature, these colorful emojis are used to communicate a thought in a vivid and humorous manner. However amusing they can be, we all know humor can shadow an employee’s judgment, and yes I have made that same mistake before myself without the use of an emoji.
What is acceptable in certain social networks, however is often times unacceptable in the workplace. Employers have to be concerned and aware that employees may become acclimated with communicating a certain way in their personal lives and it may carry over into the workplace. The fact is emoji humor can unintentionally spawn into compelling evidence in an EPL claim from wrongful termination, sexual harassment, discrimination …etc.
Clarity or confusion?
Just recently the Apple actually updated their emojis to be more racially diverse to allow users to change out a person’s race or skin color. Maybe their intent was to help add clarity to the intent of the message, but regardless of this new feature I think it only made the issue that much more problematic from a risk exposure standpoint.
So the question is, should employers ban the use of emojis? I would have to say this isn’t feasible because emoji’s are built into every portable devise being carried by their employees. Employers don’t have the time to securitize all the countless communications being sent to and from each employee.
But what employers should do is update their employee handbook and then remind all their employees that all communications should be consistent with the company’s EEO policy and that the use of inappropriate emoji’s could result in legal liability for the employer and could even lead to their termination if used incorrectly.
I am reminiscent of my Grandfather William (Bill) Moore who once owned a gas station/bus station in the little down of Litchfield back in the early 1900’s. What would he be thinking if ever faced with an EPL claim as a result of an emoji carton, in a virtual message that was sent electronically from a handheld device?
I suspect he would have done exactly what he did back then, and become frustrated and just sell his business and stick to being a cattle and tobacco farmer where a picture may still be worth a thousand words, but not worth hundreds of thousands of dollars out of his pocket.
Be Safe My Friend
Keven Moore works in risk management services. He has a bachelor’s degree from University of Kentucky, a master’s from Eastern Kentucky University and 25-plus years of experience in the safety and insurance profession. He lives in Lexington with his family and works out of both the Lexington and Northern Kentucky offices. Keven can be reached at kmoore@roeding.com.