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.
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.
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.