Law Times

Page 10 January 9, 2017 • Law Times www.lawtimesnews.com When problems arise, difficult to prove impact Hard to manage social media outside workplace BY MICHAEL MCKIERNAN For Law Times E mployers should not let the difficulties of regulat- ing employees' off-duty social media use stop them from trying, employment lawyers say. A string of high-profile cases have helped alert employers to the risks of off-colour social media posts by employees, but following through on their con- cerns with workplace discipline could prove more problematic than they might imagine, ac- cording to Mark Mendl, a part- ner in the labour, employment and regulatory law practice group at Baker & McKenzie LLP's Toronto office. "Employers always have a pre- sumptive right to regulate what happens inside the workplace. When the conduct occurs out- side the workplace, whether on social media or elsewhere, it be- comes much more difficult," he says. "Adjudicators are looking for a substantial and prejudicial impact on the employer's busi- ness, which is quite a high thresh- old to meet. Generally, they have been quite skeptical of assertions about the impact of behaviour outside the workplace." Last summer, in Ontario Public Service Employees Union (Groves) v Ontario (Community Safety and Cor- rectional Services, a Grievance Settlement Board arbitrator over- turned a correctional officer's 10-day suspension for posting a graphic and sexualized image of a woman on his public Twitter ac- count after finding "no evidence" that the post harmed the employ- er's reputation. The officer's Twit- ter handle and account summary made no mention of his job with the provincial government, the arbitrator noted. Still, Mendl says a compre- hensive social media policy, in- cluding potential disciplinary steps, and combined with em- ployee training, can help employ- ers set expectations and head off trouble before it happens. "At a minimum, you need an acceptable use policy that pro- vides guidance on what accept- able social media behaviour is," Mendl says. "Many employers will prohibit posting anything about work without explicit consent. If that's something you want to do, then you need to es- tablish those behavioural norms with a specific policy." For some employees, a simple primer on privacy settings and the public nature of social media accounts can prove enough to change their practice online. "There still appears to be a belief among employees that social media posts are some pri- vate form of communication. They have to understand that it's a medium that creates a perma- nent electronic record. Once you post something, you lose control over what can be done with it," Mendl says. Although the GSB arbitra- tion over Twitter postings ulti- mately went against the employ- er, the arbitrator in that case also rejected the correctional officer's claim that the complaint against him constituted harassment and reprisal for an early grievance he had filed. "It is not harassment for an employer to bring to an employ- ee's attention concerns it may have regarding that employee's use of social media, especially where that employee has an open account that may be subject to scrutiny by anyone," wrote GSB vice chairwoman Gail Misra in her July 22 decision. While employers are entitled to monitor employees' social me- dia use, Andrew Brown, a lawyer with Toronto employment bou- tique Sherrard Kuzz LLP, says he doesn't believe many do it as a matter of routine. "I'm not sure it's a great use of time to regularly sift through every social media site they can think of looking for some degree of misconduct," he says. "A bet- ter way is to respond properly when an issue is raised." Brown says employers should tailor their response depending on the severity of the situation. "The first step is damage con- trol. You may want to contact the employee or the site administra- tor to remove the post," he says. Even borderline cases that may not justify discipline or relate directly to the workplace present an opportunity for coaching on appropriate future use, Brown says. Matthew Curtis, a labour and employment lawyer with Den- tons Canada LLP, says there are "no bright lines" when it comes to acceptable social media use off-duty. Employers' jobs are complicated when constructing and enforcing policies around the issue because of the compet- ing rights involved, he says. "There are certainly some privacy interests that become engaged, as well as freedom of speech" for employees, in addi- tion to the employer's interest in maintaining its reputation, Cur- tis explains. The Ottawa-Carleton District School Board recently caused a stir when it sent out guidelines to teachers that advised them not to post pictures of themselves "scantily clad" by the beach or with alcohol or drugs. Although the guidelines formed only part of a training presentation to school principals, Mendl says the vagueness and potentially discriminatory na- ture of the phrase "scantily clad" could cause problems if incorpo- rated into official board policies. "If it appears it's directed to- ward female teachers only, that could raise human rights issues," he says. According to Curtis, social media issues tend to divide along the lines of off-duty and on-duty conduct. "My view of policies is that they should cover both," he says. Another case from 2016 shows that duties cut both ways when it comes to social media, and that employers can be held responsible for failing to protect employees whose jobs include operating company accounts. In Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (Use of Social Media Grievance), the union asked arbitrator Robert Howe to shut down the TTC's Twitter presence because it pro- vided a platform for passengers to harass and verbally abuse em- ployees. While most tweets were legitimate requests for transit assistance, Howe accepted a minority were racist, homopho- bic or in other ways offensive, threatening or abusive. Although Howe denied to close the account, he found the TTC workplace extended to its social media sites. Instead, he directed the commission to de- velop a policy that enshrined its responsibility for monitoring the account and responding to abusive tweeters. If Howe's reasoning is adopt- ed in other cases, Mendl says employers who fail to deal ap- propriately with abusive posts could find themselves exposed to liability under the province's Occupational Health and Safe- ty Act and human rights legis- lation. "It's a cautionary tale for em- ployers. They have got to care- fully watch what is being said about their employees, and have policies and procedures in place for addressing derogatory com- ments," he says. "You can't just bury your head in the sand." LT A single-source reference for real estate practitioners and property managers across Ontario, this text provides the latest developments in the legislation and case law impacting residential and commercial tenancies. New in this edition • New annotations of reported and unreported court and tribunal decisions under the Commercial Tenancies Act, the Residential Tenancies Act, 2006 and the Statutory Powers Procedure Act • New Landlord and Tenant Board Rules, updated July 15, 2016 by the Landlord and Tenant Board • The following legislation has been updated to reflect recent amendments: – Commercial Tenancies Act – Residential Tenancies Act, 2006 – Mortgages Act – Residential Complex Sales Representation Act – Energy Consumer Protection Act, 2010 – Statutory Powers Procedure Act – Extensive updates to the Landlord and Tenant Board Forms – Notices of Termination for Landlords – Notices of Rent Increase for Landlords – Application Forms for Landlords – Application Forms for Tenants – Notices of Termination for Tenants – Notices of Termination for Landlords – Other Forms for Tenants • Updates to the Landlord and Tenant Board Fees Information A portable source for landlord and tenant law New Edition The 2017 Annotated Ontario Landlord and Tenant Statutes Mavis J. Butkus Order # L7798-7158BE-65203 $154 Softcover + eBook December 2016 approx. 1360 pages L7798-7158BE Annual volumes supplied on standing order subscription Multiple copy discounts available Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 © 2016 Thomson Reuters Canada Limited 00241QP-A85288-NK Introductory Offer: Complimentary eBook access Untitled-3 1 2017-01-03 3:10 PM FOCUS Matthew Curtis says employers' jobs are complicated when constructing and enforcing policies around social media use outside the workplace. www.twitter.com/lawtimes Follow on

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