Employers need to keep tabs on social media to prevent harassment or discrimination against employees
A recent arbitration case dealing with the Toronto Transit Commission’s Twitter account highlights the difficulty in defining the limits of an employer’s legal obligation to protect its employees.
Some of the tweets were found to be harassment under Ontario’s human rights legislation, as well as violating the TTC’s Respect and Dignity Policy, and while the arbitrator agreed with the TTC that it was difficult, if not impossible, to regulate the Twitter account, the grievance was upheld and the decision stated the difficulty was not a defence. The arbitrator didn’t order the account be shut down, but it left it to the parties to figure out next steps, including developing template responses and mutually agreeable guidelines for responding to tweets. The arbitrator also didn’t award any damages.
“The arbitrator denied both demands primarily on the basis that, as a public service provider, the TTC has a right to establish a social media presence through Twitter for the purpose of communicating with the public and its customers — a position that was supported by expert evidence,” says Dolores Barbini, partner at Hicks Morley Hamilton Stewart Storie LLP and counsel for the TTC in this case.
The TTC was ordered to create a social media policy to address the issues, including taking on the responsibility of monitoring, contacting offensive tweeters to say the TTC doesn’t condone their comments and asking them to delete offensive tweets or be blocked. Finally, the TTC would need to ensure it follows through with the blocking and seek the assistance of Twitter if necessary.
“There is no doubt an employer has an obligation to protect its employees in this situation,” says Barbini. “The real question is how far does an employer have to go?”
She notes the TTC takes reasonable steps to address inappropriate tweets from the public directed at its employees on an ongoing basis and its process has continued to evolve since it opened the account.
“What’s interesting is the Twitter account at issue, the TTC had very little control — if any — over the posts that were made,” Mark Mendl, partner at Baker & McKenzie LLP, says, adding this is a new direction as the vast majority of cases out there have dealt with employee posts to social media, not posts by the general public to a company-held account.
“The idea that the workplace is confined to the bricks and mortar of an employer’s operation doesn’t exist anymore,” Mendl says. “We’re seeing the workplace expand into areas like social media very quickly. The law in this area is evolving quite rapidly.”
Mendl says the principles of the case could be applied outside a union environment and viewed as extending the duty to take those steps to all employers with a social media presence.
“They didn’t have the ability to remove or delete any of the offensive posts . . . and that creates a significant challenge for employers. If somebody posts something offensive and even acting with due diligence an employer can’t remove it from the website, that creates a problem.”
While the fact employers have obligations to take reasonable steps to protect their workers is nothing new, Mendl says that when it comes to social media, he’s seen a willingness — at least in the arbitration context — to extend an employer’s duty in that area.
He predicts more of these types of cases and, as the law develops, eventually, there will be some further clarity brought to the issue.
For John Ratchford, principal and general counsel at Navigator, the decision seems far-reaching.
“On the social media platforms that you can control, we always advise our own clients to try to control them to the extent that they can, but . . . in social media, it’s a dialogue going on and you don’t always control both sides of the dialogue, but you have to try to be careful about it,” he says, noting that he, too, expects future decisions on this point to offer more clarity.
Diane Laranja, associate at Filion Wakely Thorup Angeletti LLP, says another challenge for employers with social media is managing the risk that things occurring in employees’ personal lives can now more easily transcend into the workplace.
Laranja says there has been acknowledgement by adjudicators that online postings on Facebook or Twitter may be “sufficiently connected to the workplace such that they’re considered in the workplace.” In the case of these “spillover” events, arbitrators have allowed — and even expected — employers to respond.
“Quite frankly, they usually turned a blind eye to anything that happened outside the workplace or anything that happened on the big, bad World Wide Web,” Laranja says.
“Employers are increasingly expected to remain cognizant of the fact that their employees are continuing to speak to each other outside of the workplace, and if they’ve learned of circumstances that could or already have resulted in harassment in the workplace, they are expected to investigate,” she adds.
Laranja says this is presenting significant challenges to employers, and she sees it most highlighted in the employer’s duty to investigate.
“Now that workplace harassment has been recognized to sometimes include comments made in social media, the employer has to find creative ways to get the information they need to make a decision,” she says, noting employers now try to gather as much detail about alleged issues as possible from the involved employees’ social media accounts, which is complicated by privacy settings or employees refusing to share their information.
Mendl says he’s getting a lot more questions about employer obligations on social media and “what rights and responsibilities various workplace parties have.
“We’re seeing on both the employer side and on the employee side of things that both sides are becoming a lot more tech savvy and they understand how pervasive social media has become, how it’s being used by employers, and issues are being raised as we’ve seen in a number of recent cases where employees or their representatives feel that employers just aren’t doing enough to address these issues that are coming up.”
Ratchford sees the challenge coming from the “blurring of the line between what people do in their personal time and the way in which it can impact the organizations in which they work.
“Social media has allowed individuals in the modern era to publish content that is available internationally in the same way any media would be available,” he says. “It heightens the profiles of individuals and can attach them to their companies.”
Laranja points to a case from 2014, Toronto (City) v. Toronto Professional Firefighters Association Local 3888, (Bowman Grievance), where the arbitrator upheld the with-cause dismissal of a firefighter for off-duty conduct regarding derogatory tweets. Although the man wasn’t tweeting on the job, his profile identified him as a Toronto firefighter — complete with a profile picture of him in full uniform.
The arbitrator agreed the tweets, called “sexist, misogynistic, racist and generally offensive” in the decision, were damaging to the employer’s reputation and were a violation of numerous policies. Despite an apology letter from the grievor and his claim he didn’t know his tweets were public — an excuse that, with the widespread use of social media, “doesn’t fly anymore,” says Laranja — the arbitrator decided the employee’s actions were enough to warrant his dismissal.
“Interestingly, the arbitrator said that circulating these slurs and comments and insults, regardless of who created them, was discrimination and, while it wasn’t addressed in this case, it raises some interesting questions about retweets or sharing posts, even liking posts,” Laranja says.
“It’s interesting to see where it will go if an employee does nothing more than retweet derogatory comments because it creates almost a workaround where they can have an anonymous profile tweeting what they’d like and then retweeting publicly.”
Mendl, with an eye to the TTC case and its possible implications, says employers with a social media presence should take steps to monitor and prevent workers from being exposed to harassment or discrimination and advises employers to review existing policies.
“We’ve said time and time again one of the most important elements of social media is to have a policy in place that’s realistic and reasonable but at the same time protects employers’ interest,” Laranja says.
She notes that training for employees on accepted social media usage is a simple way for employers to mitigate risk and try to cut down on “spillover” events.
Ratchford says clear policies are a good idea, but a challenge to enforce given the many different ways social media can impact a workplace.
“When our clients are involved in high-profile issues, we make requests of our employees not to get involved on social media, and we also make requests that if they are identified with our company that any of their social media activity is respectful,” Ratchford says, adding he thinks one other issue to come will be the degree to which employers can make such demands of their employees when it comes to their personal use of social media.
“It wouldn’t surprise me at all if we see an increase in decisions from courts and arbitrators around the new impacts of social media,” Ratchford says. “I don’t think we’ve seen all of it yet.”