Since the inception of Facebook in 2004, social media has occupied an increasingly important place in the day-to-day activities of citizens and organizations. As a result, an increasing number of organizations have been integrating social media into their communications with stakeholders and members of the public. However, recent developments in the legal field have raised important questions regarding the risks that the use of social media platforms carry for employers in a variety of industries. It is imperative that employers better understand the associated risks, develop best practices in handling their social media accounts and learn how to respond appropriately to situations involving inappropriate employee usage.
The Ontario Human Rights Code (the Code) provides that every employee has the right to equal treatment without discrimination on the basis of race, sex, sexual orientation, gender identity, family status and disability, to name a few. In addition, the Code imposes a legal obligation on employers to provide a workplace free from harassment. This is echoed in Ontario's Occupational Health and Safety Act (OHSA), which prescribes the duty to take every precaution reasonable for the protection of employees.
Pursuant to the OHSA, an employer can be held liable for the harassment of its employees by third parties through social media, as illustrated by the recent decision Amalgamated Transit Union, Local 113 v. Toronto Transit Commission. In this decision, the Toronto Transit Commission (TTC) had created a Twitter account through which it encouraged commuters and other members of the public to share their concerns and complaints. Through this forum, TTC employees became the target of degrading and defamatory comments, including racist and homophobic remarks, vulgarity and death threats.
In this decision, the Arbitrator found that the employer, by failing to take meaningful steps to shield its employees from such comments, had breached its duty to provide a workplace free of harassment and to take reasonable measures to protect its employees. The duties imposed by the Code and OHSA require positive action by the employer to protect its employees from harassment, including on social media. This obligation is triggered as soon as an employee becomes the target of harassment, irrespective of whether the harasser is the employer, an employee or a third party.
To meet this obligation, employers should establish a social media policy and actively monitor their social media accounts to prevent risks such as harassment, defamation and the publication of embarrassing personal facts. Employers must take positive action to remove insulting comments or pictures from public viewing and ensure compliance with privacy laws. Finally, employers should ensure that the employees responsible for monitoring and responding to posts receive the proper training to identify and manage harassment situations in a timely manner.
Discipline for inappropriate social media use
Social media can also be used as a venue for harassment between employees, which begs the question; can employers discipline their employees for the inappropriate use of social media outside the workplace? Case law has answered this question in the affirmative.
In two decisions, Arbitrators have held that employers can discipline, and even dismiss, their employees for the inappropriate use of social media while off-duty. In Bell Technical Solutions v. Communications, Energy and Paperworkers Union of Canada, three employees had repeatedly, and for a lengthy period of time, posted inappropriate comments about their manager on Facebook. Despite warnings that the postings were unsuitable and requests to cease their actions, the employees continued to exhibit the same behaviour. As a result, two employees were terminated and one received a five-day suspension. The Arbitrator maintained one termination and substituted the second termination for a lengthy suspension. In United Steelworkers of America, Local 9548 v. Tenaris Algoma Tubes Inc., the grievor's employment was terminated following a series of posts on his Facebook page in which he suggested that violent and degrading acts of a sexual nature should be performed on a female co-worker as a result of workplace disagreement.
In these two decisions, the Arbitrators concluded that inappropriate off-duty comments on social media could constitute reasonable grounds for discipline and dismissal. In determining the severity of the discipline, employers must take into consideration several factors, including:
- The nature and frequency of the comments;
- The degree of insolence, insubordination or insult to the targeted individual or the employer;
- Any evidence of provocation; and
- The employee's willingness to take responsibility for its actions.
Provocation has been identified as an important mitigating factor. Employers should provide more lenience towards employees who have been provoked into posting inappropriate comments on social media.
To the extent that inappropriate comments made on social media are aimed at poisoning a co-worker's work environment, these cannot be considered as "off-duty." Thus, employers have the right, and the responsibility, take measures for the behaviour to cease and to discipline their employees for the inappropriate use of social media outside the workplace.
In response to these problems, employers can implement a series of best practices to better shield themselves from liability and address inappropriate usage of social media. First and foremost, employers should adopt a social media policy to address issues such as harassment and discipline. This policy can be distinct, or it can be incorporated in the employer's existing policies on privacy, its code of conduct or its workplace safety policies. Finally, when drafting a new policy, the employer should be careful in providing a policy that takes into account technological change.
The author wishes to thank Gabrielle Cyr, law student, for her contribution.