As the use of emoticons becomes more common in the workplace, it should be no surprise that they are increasingly becoming a factor in workplace litigation. Like non-verbal gestures, emoticons can be subject to varying interpretation, sometimes even inconsistent with the intent of the sender, which can sometimes lead to problems.
It reminds me of a case where I represented a municipal employer who had discharged a long time employee because a resident complained that the employee asked for a money to remove his yard waste. No words were spoken, but the employee communicated his condition for removing the waste by rubbing his thumb, index and middle finger together in a gesture that many understand to reference money or the costliness of something. The employee grieved his dismissal, arguing that he never spoke about being paid on the side to remove the resident’s yard waste and that the gesture was subject to numerous interpretations. Fortunately, the arbitrator didn’t buy that defense and upheld the discharge, finding that the gesture is commonly interpreted to reference money or the payment of money and in the context of the situation, the employee was clearly asking for money. Emoticons can cause the same kind of trouble.
Take the recent case out of the New Jersey courts where a discharged employee brought suit after being terminated for FMLA leave abuse. The employer had actual video of the employee being out and about and active when she should have been, according to her representations, home recovering and unable to work. During the litigation, the employee’s lawyer requested internal company e-mails sent during the timeframe leading up to the employee’s termination. In one such e-mail, which was sent the day the employee was fired, her supervisor began with a smiley face emoticon, and asked “:-)) did Ray chat with you about Elaina?”. Another supervisor responded with, “Yes he did. Thank you for your help. That deserves a big :-))!!!”
The emoticons became an issue in the litigation. The employee argued that the smiley faces evidenced that the supervisors were happy to have a pretext by which they could discharge her. The employer argued that the emoticons were innocuous at best, and that the company had solid grounds to fire the employee for abusing FMLA leave.
The court refused to dismiss the fired employee’s lawsuit against the company for FMLA retaliation. In doing so, the judge specifically called out the smiley face emoticons in the e-mails sent between the supervisors on the day of termination, and found that a jury could conclude that the employer was happy to terminate the employee because the FMLA leave was inconvenient for them.
As emoticons become a whole new part of our language, used to convey a variety of emotions and actions, employers need to be aware that their use can be confusing and sometimes damaging. Employers should discourage staff from using emoticons in emails and other work related correspondence. While many emoticons can be interpreted to be just a light hearted way to greet a co-worker or member of the public, or another way to say “have a good day,” many can also be misinterpreted to evidence harassing behavior or other unlawful intent or actions. Using actual words is still the best way to ensure that a message is properly communicated.