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Protecting employees from social media harassment

social mediaIt is well known that employees have certain legal obligations to their employer with respect to the content of their social media profiles. An arbitrator recently confirmed that employers also need to be careful about the content of their social media pages as it relates to their employees.

A provincial arbitrator ruled that the Toronto Transit Commission (TTC) failed to protect its employees from harassment and discrimination on Twitter. The arbitrator found that specifically, the @TTChelps twitter account did not take the reasonable available measures to protect its employees .

Under the Ontario Human Rights Code, workplaces must be free from harassment and discrimination.  In accordance with the ruling in this arbitration, the Internet and social media are now considered to be part of the workplace that requires protection.

The TTCHelps Twitter hotline allows customers to vent their frustrations with the TTC. If users have questions, complaints or feedback, the TTC will respond, but the primary purpose of the @TTChelps account is to express regret and empathy to dissatisfied TTC customers.  Through this Twitter account, the TTC does not attempt to justify what happened, or suggest to the customer that their complaint was frivolous or otherwise unwarranted. Rather, the TTC simply apologizes to its customers, and expresses that the incident that gave rise to the complaint should not happen again.

The arbitrator found the TTC’s approach to be inappropriate and conducive to harassment of the TTC’s employees.

In the view of the arbitrator, the TTC must not tolerate offensive tweets, but rather, must condemn them. Failing to condemn the language can be perceived as condoning the language and validating the customer’s allegation that the TTC employee behaved inappropriately, even if the employee did not do anything wrong.

Employers must ensure there is no harassment or discrimination in their workplace. Additionally, employers are expected to take steps to prevent harassment of their employees by third parties. When this happens, employers have a duty to intervene and protect their employees. While it is understood that the employer may not be able to control all third party actions and remarks, they are expected to take all reasonable measures to mitigate the harassment their employees are experiencing.

The arbitrator concluded:

To deter people from sending such tweets, @TTChelps should not only indicate that the TTC does not condone abusive, profane, derogatory or offensive comments, but should go on to request the tweeters to immediately delete the offensive tweets and to advise them that if they do not do so they will be blocked. If that response does not result in an offensive tweet being deleted forthwith, @TTChelps should proceed to block the tweeter. It may also be appropriate to seek the assistance of Twitter in having offensive tweets deleted. If Twitter is unwilling to provide such assistance, this may be a relevant factor for consideration in determining whether the TTC should continue to be permitted to use @TTChelps.

If an organization wants to be active on social media, it must have a policy to handle potential harassment against employees. This includes not appearing sympathetic or empathetic to individuals who may be perceived as harassing their employees.

Employers on social media should advise users that they do not condone language that is abusive, profane, derogatory or offensive, should delete offensive content, block users who use inappropriate language, and guide customers who have complaints about employees to the appropriate person, instead of dealing with the complaint online, in a public forum.

The implications of this decision are far reaching. While this is an arbitration that specifically applies to the TTC and its collective bargaining agreement, many large organizations have similar collective bargaining provisions, in addition to similar Twitter policies.

CP24 has noted that Air Canada and Westjet had Twitter complaint programs similar to that of the TTC.

Many employers are using complaint–based Twitter accounts to provide a forum for customers to “vent”, and allow their voices to be heard to mitigate long–lasting resentment. However, these organizations should create new social media policies that include stricter provisions to prevent harassment of their employees.

By: Marty Rabinovitch and Daniel Frank, Student-at-Law

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Devry Smith Frank LLP

Employment and labour lawyers at Devry Smith Frank LLP
Devry Smith Frank LLP (DSF) is the largest full service law firm in Toronto outside of the downtown core. They offer a broad range of legal services to individual, business and corporate clients in most areas of corporate and personal law. Their firm’s employment law group covers a broad spectrum of HR law, including employment and labour law, occupational health & safety, human rights, workers’ compensation and much more.Lawyers at Devry Smith Frank LLP lead by Marty Rabinovitch B.A.H., LL.B. will be covering issues surrounding employment and labour law and human rights on First Reference Talks. They also provide training, seminars and conferences on the above topics. Read more .
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