Overview
In our previous article, we discussed how employees should be made aware that their social media presence outside the workplace does not always remain private and that repercussions may result from inappropriate social media use. This article will focus on employers and their obligations in monitoring social media.
Employers must ensure that the social media they supervise and/or control remains respectful to their employees in order to abide by workplace safety and health legislation.
Employers have well-established general duties to their employees to provide a safe workplace, which includes taking measures to prevent or eliminate harassment and discrimination. Courts and arbitrators have held that in appropriate circumstances, an employer’s liability in this regard can be extended to include harassment of an employee by a third party — such as customers or the public posting harassing or discriminatory content onto an employer’s social media pages.
For example, in 2016, the Toronto Transit Commission (TTC) came under fire for its use and improper supervision of its corporate social media accounts. The TTC’s social media presence included two Twitter accounts. One was meant to be used to provide service updates, reminders, and information about service issues, and the other to answer customer service questions and concerns.
On these Twitter accounts, the public would post complaints against the employees, some of which included personal information such as badge numbers, photos and place of work, and included threats and harassing messages targeted against these employees. The TTC often responded by:
- Ignoring any offensive language and directing the poster to the TTC’s complaints hotline or the online submission form through the TTC’s website.
- Posting: “Can you please refrain from using vulgarity and elaborate on what happened?”.
- Stating that the TTC does not condone abusive, profane, derogatory or offensive comments.
In response, the employees’ union filed a grievance regarding the TTC’s use of social media, seeking to shut down the TTC’s social media accounts, or alternatively, impose restrictions on the same.
The TTC expressed the view that “you can’t stop the public from what they say on Twitter.” The Ontario Labour Board disagreed with this sentiment and ruled that while an employer may not be able to control the remarks of a customer or consumer, the employer does have control over how it responds to discriminatory conduct in the workplace, regardless of how the condition occurred, and that the TTC’s responses were largely inadequate. However, the Board refused to shut down the TTC’s social media pages, and instead mandated the TTC to develop a social media policy in conjunction with the union that would include template responses to certain public Tweets and rules for what can and cannot be posted about their employees.
Similarly, in 2019, a Jewish Studies teacher accompanied students on a field trip to a conference where the Deputy Assistant to then U.S. President Donald Trump was presenting. The teacher took a photo with the Deputy Assistant and students, and posted it on her personal Twitter page.
The post created controversy, resulting in public scrutiny and political debate. The school responded by denouncing the teacher’s actions on their Facebook page and expressed that the post did not represent the position of the school.
This resulted in further posts and comments that were critical of and offensive to the teacher, some of which were anti-Semitic and defined as hate speech, on the school’s Facebook page. While the most egregious of these posts were removed, the school left other posts that were critical of the teacher. The employer was found to be in breach of the governing Collective Agreement for failure to remove the public posts, thereby failing to protect the employee from harassment.
These two cases highlight the importance for employers with a social media presence (or those seeking to establish one) to effectively monitor what is being posted and commented on their pages. In particular, employers are advised to:
- Establish and implement a social media policy. Any such policy should, at a minimum, provide guidelines to employees who represent the company in executive, marketing, corporate communications or customer service roles with a social media element.
- Map out in advance a procedure for dealing with offensive posts. Recognize that every online venue must deal with inappropriate comments. Be prepared to respond quickly in order to sanction the poster and remove the offensive comments.
- Take employee complaints seriously and investigate. Individual sensitivities are subjective, should a post fall through the cracks and be permitted to be posted, ensure that any complaints raised are properly looked into pursuant an the workplace harassment policy.
- Dealing with customer complaints. Minimize the impact of complaints that are aired publicly by directing all such communications to a private channel, such as a complaints hotline.