Using emojis - when the smiley becomes serious misconduct
Emoticons or emojis are a global phenomenon akin to a visual textspeak, with employees, companies and even countries adopting their own versions of the tiny images, to create a whole new world of communication.
Nowadays, more than two-thirds of the New Zealand workforce own and use a mobile phone or electronic device. All of these have the ability to use emoji, and according to research, 92 percent of the online population admits to using emojis. Emojis have found their way into our businesses and official communications.
Emojis in the Workplace
A smiley face or heart emoji may be acceptable in a text or Facebook post outside of work, but few appreciate the fact that the use of emojis may have legal consequences and could result in disciplinary action or potential liability for infringements of human rights, in the workplace. It could even cost an employer that international client.
It seems far-fetched that tiny icons inserted into a text messages or employee communications could end up as evidence in an employment disciplinary. But emojis are appearing in cases more frequently and there have been numerous cases that involve the use of emojis that involve claims of harassment. Such communications have been cited by employers as evidence of a hostile workplace environment.
Examples of the Damage
Firing an employee by emoji is probably not going to end well. A 2017 case saw an employer text - U r fired (fire emoji) 📷- after suspecting a hairdressing employee was working for a competitor. With no procedure followed, the Authority awarded the employee $8,000 in compensation.
Another case in the Employment Court related to an employee sending 451 inappropriate emails and emojis, 26 of which were deemed offensive, and that was only over a six month period! Emojis often contain offensive content, such as racist, religious. sexist or pornographic themes, which is not something you want associated with your business. Furthermore, when reading and forwarding these emoticons, employees are not working.
A further potential minefield you should be aware of is that many of these emojis mock specific groups and this may create a psychologically unsafe workplace environment. This could lead to claims of harassment, bullying and even a personal grievance against you as the employer. An American case held that an anonymous post on a message board aimed at a co-worker, containing certain comments and an emoticon showing someone sticking their tongue out: “the joking, hostile, and sarcastic manner of the comments, the use of an emoticon showing someone sticking their tongue out … were made facetiously and with the intent to ridicule, criticise, and denigrate plaintiff rather than to assert knowledge of actual facts”.
Employees may send texts using emojis that may undermine the business, show disregard for the employer and demonstrate that the employee’s loyalties lie elsewhere. This is obviously not desirable when your business logo is attached. In Australia, hundreds of Streets ice cream workers risked disciplinary action if they posted angry “emojis” on social media in protest at multinational giant Unilever's threats to cut their pay and conditions (September 2017.) Asked if the expression of emotion by emojis (like anger etc) under a post could be considered as breaching company policy, the Company stated: “Yes, this is captured under our social media policy if the post is related to a company matter and failure to comply with its code of business principles and code policies and will be taken very seriously by Unilever and may result in disciplinary action, including dismissal and legal action.”
Emojis having a local flavour or 'nationality' are becoming increasingly popular. People wanting to text in a Maori "accent" are able to do so with a special set of emoji (emotiki) in New Zealand. But employees need to be aware that local is not necessarily acceptable. A recent case was the use of the hands-up emoji. In our culture it means praise. But in China, it is offensive - it means stay away from me. If your employee were to use that in a work-related occasion in China, they would be accomplishing the exact opposite of your company's goals.
There are the more indirect consequences when the use of emojis can point to unfair discrimination and the like. In 2016, a complaint was lodged with Unicode (who universally choose and encode icons) that emojis were perpetuating gender inequality. The argument was that all the “action” and career-specific emojis were male whilst the female emojis were dancing, getting married or grooming themselves. They claimed that this was a subliminal message for fostering prejudice.
Tips for Employers
Use of emojis has become prevalent enough that it would be good business practice to review your electronic device and e-mail communication policies and make sure they include the use of symbols. While emojis may be mostly endearing, for now, employers should be advising their employees to avoid emoticons and emojis in business dealings. The chance of miscommunication is high and is compounded by the differences on different platforms and versions. But more than that, no business wants to be the test case for emoji interpretation in New Zealand.
Bev Edwards
Straighttalk Law
September 2018
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