Social Media in the Workplace

Transcription

1 Social Media in the Workplace Daniel Pugen Partner, McCarthy Tétrault LLP

2 Introduction How does social media influence our traditional views of employment? What labour and employment issues arise as a result of the use of social medial by employees, both in the workplace and on their personal time? How can we integrate social media with our business in an effective manner, while limiting risk?

3 Introduction, continued Use of social media and the different options available to users are expanding rapidly. Facebook: 19M Canadian users; 1B worldwide; Canadian usage exceeds US, global average. Twitter: 500M users; 400M tweets sent per day. Instagram: Launched late 2010; 130M users; 16B photos shared. LinkedIn: 200M users; 42% update daily; 39% pay for premium account. Social networking is blurring the boundaries between work and play.

4 Introduction: Old Problems, Amplified E.g., Workplace Relationship Management: Friending Co-workers on Facebook: OfficeTeam conducted a poll and found that most senior managers are uncomfortable being friended by their bosses (71%) or employees they supervise (66%) E.g., Employee Misconduct Mr. Lube employee recently terminated for tweeting, at work, Any dealers in Vaughan wanna make a 20sac chop? Come to Keele/Langstaff Mr. Lube, need a spliff or two to help me last this open to close.

5 Introduction: New Problems, too New sources for productivity loss Threats to confidentiality Undermining management Harm to company reputation

6 Today s Discussion Some Developments of Note: Social Media in the News and Jurisprudence Review of Best Practices for Computer Use and Social Media Policies Drafting an Effective Social Media Policy

7 Developments of Note: Social Media in the News and Jurisprudence

8 National Post Reports on Inappropriate Tweets Made by Scarborough Firefighters: Toronto Fire removed two firefighters from duty following a story in the National Post that the employees had posted inappropriate tweets about Hero_Matt, tweeted: Reject a woman and she will never let it go. One of the many defects of their kind. Also weak arms.

9 National Post, Hero_Matt, had also tweeted: I d never let a woman kick my [a**]. If she tried something I d be like Hey! you get your [b****] [a**] back in the kitchen and make me some would swat[ting] her in the back of the head been considered abuse or a way to reset the brain? Following the story s publication, Twitter account was no longer searchable and account was no longer public.

10 National Post, continued The Secretary-Treasurer of the Toronto Professional Firefighters Association said, Things people write can be taken out of context. I don t think the tweets represent the kinds of individuals that those two members are. However, Toronto Fire Chief Jim Sales said that the firefighters were not on duty, calling the comments absolutely unacceptable and noting that a comprehensive investigation had been conducted.

11 National Post, continued Chief Sales also noted a need to increase sensitivity training and expressed disappointment (a) that it happened, and (b) that it showed up in the press. But if that s what it takes to make us aware, then so be it. Our responsibility is to ensure that we become a supportive employer in all ways, shapes and forms. The National Post story emphasizes the reputational risks to employers that arise as a result of social media.

12 Perez-Moreno v. Kulczycki, 2013 HRTO 1074 Applicant was a manager at a golf resort. Applicant intervened in a workplace argument between the Respondent and another employee. The Respondent employee posted on Facebook that she had been written up at work for calling the Applicant a dirty Mexican. The Respondent also told other employees: now that Mexican is not going to give me anything.

13 Perez-Moreno, continued The Applicant filed a complaint with the Human Rights Tribunal of Ontario, alleging discrimination in employment on the basis of race, ancestry, place of origin, citizenship and ethnic origin. The employer was not named as a Respondent. The Respondent employee did not file a response with the Tribunal.

14 Perez-Moreno, continued Applicant submitted that he found the Facebook post and other derogatory comments to be humiliating and damaging to his character, work and personal life, as well as to his emotional, social, mental and possible financial wellbeing. The Tribunal found that the respondent s statements and actions, including her posts on Facebook, amounted to harassment in employment contrary to the Ontario Human Rights Code ( Code ).

15 Perez-Moreno, continued Tribunal applied Taylor-Baptiste v Ontario Public Service Employees Union, 2012 HRTO 1392, which held that the Code may apply to workplace-related postings on the internet, and found that the Respondent s comments clearly were vexatious and related to an incident that occurred in the workplace. Although the resort was not named as a Respondent, employers may be held vicariously liable for the discriminatory conduct of their employees. Anti-discrimination and harassment policies should address the appropriate use of social media, both in the workplace and at home.

16 Tremblay v Ontario Inc., 2012 HRTO 1939 Applicant, Tremblay, filed a human rights complaint against her employer, a fast food chain, and named her manager, Lalonde, as a personal Respondent. At the mediation of the Application, Tremblay and the respondents signed the Tribunal s Agreement to Mediate form, which includes the following clause: 5. We understand and agree that this is a confidential process....all statements made during the mediation are without prejudice and cannot be used in evidence before the HRTO or in any other civil proceeding.

17 Tremblay, continued At mediation, the parties were able to reach a settlement, and signed Minutes of Settlement that contained the following term: 2. The Applicant and the Respondents agree to maintain confidentiality of the terms of these Minutes of Settlement, and shall not discuss or disclose the terms of the settlement with anyone other than immediate family, or legal or financial advisors, or as required by law.

18 Tremblay, continued When Lalonde returned to work the following day, a co-worked said that Tremblay had been posting messages about the mediation and settlement on her Facebook account. During the mediation session Tremblay had posted: Sitting in court now and [blank in original posting] is feeding them a bunch of bull [s**]. I don't care but I'm not leaving here without my money...lol.

19 Tremblay, continued After the Minutes of Settlement were signed, Tremblay made additional posts: Well court is done didn't get what I wanted but I still walked away with some... Well my mother always said something is better than nothing...thank you so much [S]aphir for coming today...

20 Tremblay, continued The Respondent employer was concerned the restaurant operated in the small community of Cornwall and did not want its reputation damaged. The restaurant did not want to encourage the view that filing a claim against or suing the company was easy. The restaurant argued that Tremblay s actions had rendered the Minutes of Settlement null and void, and that the company should not be obligated to pay Tremblay at all.

21 Tremblay, continued Tribunal found that Tremblay had breached the Minutes of Settlement. It did not matter that company was not named in her posts or that she did not reveal the settlement amount. The Tribunal reduced the settlement amount owed to Tremblay by $1000. The Tribunal balanced: a) the need to provide the corporate respondent with a remedy that would encourage adherence to the confidentiality clause; and b) a desire to avoid an amount that would be punitive to Tremblay.

22 Best Practices Computer Use and Social Media Policies

23 Best Practices Preliminary Matters EMPLOYEES HAVE DUTIES: Employees must follow employer rules and policies, (e.g. , Internet or cell phone usage policies). Employers can discipline for unauthorized or improper usage which constitute violations of policy. Employees have a duty of loyalty toward their employer. Breach of this duty may include harmful speech, insubordination, disparagement and disclosure of confidential information. Rules of conduct and policies prohibiting harassment, discrimination and release of IP or other confidential information must be followed.

24 Best Practices Preliminary Matters Build the policy with input from all areas of the business. Put the policy in writing. Document employee training and acceptance. Clearly state the scope of the policy, the organization s expectations and the disciplinary consequences of breach. Clearly state expectations: what is acceptable use? Post the policy, circulate it regularly and notify employees when it is updated.

25 Best Practices Computer Use Policies In order to protect themselves from the misuse of technology and social media sites, employers should: Implement a clear-cut and comprehensive computeruse policy that sets out permitted and proscribed uses of workplace computer systems. This policy, like all policies, should be carefully drafted and subsequently reviewed to ensure its continued applicability and validity. Ensure that all employees receive copies of the policy and acknowledge their receipt and understanding of the policy.

26 Best Practices Computer Use Policies A well-drafted computer-use policy should expressly state the following: When employees can spend time accessing non-workrelated websites. The employer s right to ban a website altogether. The employer s right to revoke or limit Internet privileges at any time. The types of Internet access that are strictly forbidden

27 Best Practices Computer Use Policies A computer-use policy should further state: The purposes for which may be used. Prohibited uses of The consequences for violating the Internet and policy.

28 Best Practices Social Media Policies Employers should develop and communicate to all employees a clear policy on the appropriate use of social media sites. This policy should establish best practices and outline employer expectations for the acceptable use, if any, of social networking in the workplace. In addition, it should set out consequences of misuse and address any workplace privacy issues.

29 Best Practices Social Media Policies A social media policy should address: whether work-based or personal use of social media sites is permissible in the workplace; under what circumstances (i.e. unpaid breaks) social media sites may be used; a description of acceptable and unacceptable use of social media sites; whether the employer monitors social media sites; what other rules apply to the use of social media sites in the workplace (i.e., collective agreements, other legislation); and the consequences of failure to abide by the policy.

30 Best Practices Social Media Policies The policy should further address: Social media must be used in a manner that is consistent with other policies (code of conduct, harassment policy, etc.) Employees must not represent that they are expressing the opinion of their employer; Employees are personally responsible for the content of their posts; and Disclosure of confidential or proprietary information concerning an employer must never occur..

31 Best Practices Social Media Policies Finally, the policy should address: An employee s use of social media must not bring the company s reputation into disrepute; Employees must ensure that their postings are respectful of co-workers and management; and Reputational risk.

32 Drafting an Effective Social Media Policy

33 1. POLICY STATEMENT Consider: Purpose/Goals Related policies that may apply

34 Sample: Policy Statement This policy is intended to establish the requirements regarding the use of social media at the Company This policy should be read in conjunction with other company policies, including [insert] Utilization of Social Media offers opportunities for improving workflows and establishing brand recognition. However, it also poses legal, reputational and privacy risks to the organization which this policies aims to address.

35 2. DEFINITION Consider: What is social media? What kind of social media use do you want to capture?

36 Sample: Definition Social media includes web and mobile based social media technology or interactive communities (including, but not limited to, Facebook, Twitter, YouTube, LinkedIn, and blogs).

37 3. SCOPE Consider: To whom does it apply? Where does it apply? What about new technologies not contemplated by the current policy?

38 Sample: Scope Policy applies to individual employee/contractor use Policy also applies to corporate use i.e. those Company business areas that wish to engage in Social Media to advance their business objectives and establishes requirements and procedures for such use. As new technologies and tools become available, this Policy may be revised as necessary. Should a new area emerge that is not covered by this policy, individuals are expected to consult with their manager

39 4. INDIVIDUAL EMPLOYEE USE Consider: Employees will likely use social media in their personal capacity. How does employees personal use of social media impact your business?

40 Sample: Individual Employee Use The requirements below apply to individuals who create or contribute to Social Media on behalf of the Company as well as individuals, acting in their personal capacity, who use Social Media in a manner that may impact the Company and/or its key stakeholders. Employees and contractors may participate in Social Media in a personal capacity. It is expected that employees who do so understand and follow these requirements, which are designed to ensure that their participation in and usage of Social Media is done in a manner that is respectful, consistent with their respective employment obligations and respects the Company s reputation.

41 Sample: Individual Employee Use, continued Only those who are officially designated to act as a spokesperson (or designate) for the Company may use Social Media to speak on behalf of the Company. If a member of the news media or any member of the online community (including online newsletters or bloggers) contacts an individual about a Social Media posting that con cerns the Company, that individual must refer that person a designated spokesperson and must decline to provide any comment or statement.

42 5. CORPORATE USE Consider: Communications/social media use by employees acting in the course of their employment. Social Media Plan development.

43 Sample: Corporate Use Any and all Social Media communications involving, relating to or referring to the Company must be consistent with the Company s corporate communications protocols and this Policy. A Social Media post is considered Company-related if it contains the company s name, contact information, suffix, website link or images of persons working at the Company or at Company functions as well as if it is created or maintained on Company equipment.

44 Sample: Corporate Use, Social Media Plan Prior to using Social Media for company business purposes, a Social Media Plan must be approved by [insert individual]. A Social Media Plan must include the following details, at a minimum: Description of the business need; Description of the social media to be used; List of individuals responsible for determining, approving, implementing, monitoring and reporting on Social Media usage.

45 6. GENERAL REQUIREMENTS FOR INDIVIDUAL AND CORPORATE USE Consider: General statement re: Individual and Corporate best practices Responsible behaviour Respectful behaviour Being discreet Consent Transparency Vigilance

46 Sample: General Requirements for Individual and Corporate Use The lines between public and private, personal and professional are blurred on social media. All individuals must be thoughtful about how they present themselves on Social Media. It is important to remember that anything posted on Social Media has the potential to go viral. Individuals should only post content that complies with this Policy and that they would feel comfortable being publicized to a broader audience including their manager and colleagues. The above applies regardless of whether employees are on duty or off duty at the time of posting.

47 Sample: General Requirements for Individual and Corporate Use Be Responsible Individuals must exercise personal discretion and accountability Individuals may be legally responsible for their personal postings and usage of Social Media. Individuals are responsible for ensuring that their online activities do not interfere with their ability to perform their respective job duties or the company s business operations and reputation Individuals must remember that they are a representative of the Company, even if they are posting from a non-company computer outside of work hours.

48 Sample: General Requirements for Individual and Corporate Use Be Respectful In using Social Media, regardless of whether you are on-duty or off-duty at the time, individuals must use their best judgment, and must not insult others. Be Discreet No matter what type of forum an individual is posting on, one must respect the confidentiality and proprietary nature of their work. Under no circumstances should an individual share sensitive financial or sales information or other confidential/proprietary information. Further, individuals must not share any personal or identifying information that is subject to privacy laws, such as the personal information of an employee or customer.

49 Sample: General Requirements for Individual and Corporate Use Obtain Consent Individuals must not create or circulate postings on Social Media that they know are written by others without first obtaining the author s written consent and disclosing the source of information to the recipient. Individuals must not use company brands, logos or trademarks without obtaining the appropriate written consent in advance.

50 Sample: General Requirements for Individual and Corporate Use Be Transparent Individuals must be clear about their identity, motivation and reason for posting or using Social Media, and must never use Social Media for covert advocacy, public relations or marketing purposes (i.e. anonymous postings that appear to independently support or endorse or, alternatively, disparage the company). Individuals must not use their personal Social Media accounts to respond or post on behalf of the Company, and must not include Company logos or trademarks on their personal accounts. When posting a personal point of view, individuals must not claim or imply that their views are endorsed by or reflective of the Company. If an individual identifies themselves as a representative of the Company, they must clearly state that the views expressed are their own personal views.

51 Sample: General Requirements for Individual and Corporate Use Be Vigilant When an individual sees misrepresentations or negative postings made about the Company by media, analysts, bloggers or other Social Media users, they should report this to management. Individuals should not engage in any form of response without prior written approval and involvement from the appropriate company official.

52 7. SOCIAL MEDIA ACCOUNT OWNERSHIP Consider: Do employees blog or post on the company s behalf?

53 Sample: Social Media Account Ownership If an individual participates in Social Media activities as part of their job at the company, the account used by such individual and all postings shall be considered company property and shall remain the property regardless of employment status. Individuals must not change the password or the account name or create a similar sounding account, nor may they have any ownership of the contacts (e.g. LinkedIn) and connections they have gained through such account(s).

54 8. REPORTING AND MONITORING Consider: Who will administer the policy? How will social media use be monitored?

55 Sample: Reporting and Monitoring IT is responsible for monitoring Social Media for the Company and will provide results to management and human resources as necessary. Monitoring and usage rules identified in the Company s internet use policy apply to social media activities.

56 9. POLICY ENFORCEMENT Consider: What disciplinary action, if any, will be taken in the event of a policy breach?

57 Sample: Policy Enforcement The company reserves the right to take corrective action for breach of this policy, up to and including dismissal for cause. Further, the company may also request that individuals withdraw certain posts from Social Media accounts or sites, regardless of whether the post appears on a personal or Companyrelated Social Media account or site.

58 10. ACKNOWLEDGEMENT AND ACCEPTANCE Consider: Have employees sign and date the policy to confirm that they have reviewed and understand the terms and conditions of the policy.

59 Acceptance On [insert date] I acknowledge the terms of this Social Media Policy and confirm that I have read and understand its contents.