Canadian HR Reporter

February 10, 2014 Insight Canadian HR Reporter 19 'Tweets are my own' – except when your company's reputation is on the line Employers can ask workers not to identify themselves as employees on personal social media accounts Question: Can an employer order employees not to display certain information on their personal websites and social media sites, such as anything identifying themselves as employees of that particular company? Answer: Yes. If the proper policies are in place, employees must comply with "acceptable" online activity. If employers were not already convinced social media is a legitimate concern and they need to take steps to control employees' use thereof, some recent events should make this even clearer. This past summer, a drug-soliciting Mr. Lube employee was fired after police responded to his Twitter request for marijuana: "Any dealers in Vaughan wanna make a 20sac chop? Come to Keele/Langstaff Mr. Lube, need a spliff." The tweet went viral — even the police responded, retweeting the employee's request for drugs and asking if they could join. The employee was dismissed. In early 2013, HMV found itself on the wrong end of extremely negative publicity after some employees took control of the company's Twitter account and produced a live Twitter feed as they were being fired. The tweets began with "We're tweeting live from HR where we're all being fired! Exciting!" and continued for all the world to see. While the tweets were being posted, company executives became aware of the situation but struggled to reclaim control of the Twitter account — losing valuable time and causing additional damage to the company's reputation, particularly when it became known they did not know how to regain control. The possibility that an employee may express opinions online that may negatively impact her employment relationship and the organization itself is a reality employers must now consider. To avoid such scenarios, employers should have a carefully drafted social media policy. There is no "standard" format to such policies — they will vary from or- Stuart Rudner Toughest HR Question ganization to organization. But regardless of the type of policy implemented, it is important that it be well-understood by employers and employees alike. A social media policy needs to clearly set out that if an employee disparages the company, harms the company's reputation in any way or posts sensitive or confidential information online, that employee will be subject to disciplinary measures. Among other things, policies can provide that employees do not identify themselves as employees of the company and, in any event, make it clear that all opinions expressed are their own and not the company's. However, it should also be made clear to the employee that even if she does clarify that her opinions are her own, her conduct can still negatively impact the employer and lead to discipline. A social media policy should not only cover material on a company blog or a company Facebook or Twitter account — it should also set out the appropriate use of personal blogs, Facebook pages or Twitter accounts to confirm what the employee can and cannot do away from work, as well as confirm that off-duty conduct can still result in discipline and, when appropriate, dismissal. The policy should also be clear that it is not restricted to employees' use of social media on work computers but also extends to use of social media on employee time. It is important for employers to define what is and what is not considered "acceptable use" both on the company's network and outside of it. Policies should be clear that company systems may not be used for illegal activity such as copyright or plagiarism and downloading pirated software. Enforcement of the policy should be clear to all employees so they are aware of what disciplinary action will be taken, up to and including termination, if policies are not followed. Make it clear that consequences can flow from off-duty conduct. In a number of Canadian and American cases, employees have faced discipline and even dismissal for comments they posted on social media platforms. The key issue is often whether the online comments prejudice the employer, adversely affect the employer's reputation or make the continued employment relationship impossible. da (CAW-Canada), Local 127, a unionized employee made comments on her personal blog and published information and pictures about residents in violation of a signed confidentiality agreement. Her employer argued she had made comments on the website about fellow employees that were of an inappropriate nature. As a result, her discharge cause was upheld. In Wasaya Airways LP v. Air Line Pilots Assn., International, a unionized employee's discipline for just cause was upheld because of derogatory comments he made about First Nations people on his personal Facebook site. More recently, in Perez-Moreno v. Kulczycki, the Ontario Human Rights Tribunal decided an employee's comments on her Employers can nonetheless be held vicariously liable for the actions of employees, even if they are not directly involved in the misconduct. Last winter, an Ontario Hockey League (OHL) referee visiting Sault Ste. Marie, Ont., for a game posted extremely unflattering and offensive comments about the female population, much to the chagrin of the league. Although he tried to remedy the situation with an explanatory tweet in which he claimed it was, essentially, an inside joke with a friend, the league suspended the referee for the balance of the season and playoffs. In 2012, a clothing store employee posted a reprehensible comment on the Facebook memorial wall for Amanda Todd, a 15-year-old victim of bullying who committed suicide. When someone viewed the post and discovered the identity of the poster and the company he worked for — all of which was information readily available online — she contacted the employer, which promptly dismissed the individual. In Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Cana- Reader Comments I feel for Ron Mitchell but it is regrettable that you were unable to contact the union about this. I have worked with ATU Local 113 for over 15 years and have attended a large number of events conducted by the union specifically for retirees. Every retired member is given a framed certificate of appreciation and lifetime membership, along with a small but memorable gift. Plus there is an annual retirees party that hundreds attend, a golf tournament specifically for retirees and several other social events. In addition, a retiree with a problem with his benefits or pension can call the union and get assistance, which is freely and happily given. I guess Mr. Mitchell didn't understand this or just forgot about what he had heard from other retirees. The union greatly values its retirees and wants to do its part to make up for the actuarial fact that Toronto Transit Commission (TTC) front-line employees die an average of four years earlier than the general population due, it is assumed, to the great stress they experience every day in a mainly sedentary occupation. Mr. Mitchell was entitled to his rant, even if he got it a bit wrong when it comes to the union, which hopes he has a long and happy retirement after he cools down a bit. — Bill Reno, commenting on Todd Humber's blog "Disgruntled employees get 15 minutes of fame. " Join the conversation online. Comment freely on any blog on www.hrreporter.com. Facebook page concerning her manager were discriminatory and in violation of the province's Human Rights Code. The online comments, which referenced a co-worker's ethnic background in a derogatory manner, were posted after the employee intervened in an argument between two co-workers. The co-worker felt humiliated and ashamed as a result of the comments, as did his son, who was informed of the discriminatory comments by a classmate at school. The Perez-Moreno decision confirms that the Ontario Human Rights Code applies to workplacerelated postings on the Internet, including comments made by employees on their personal Facebook pages. The tribunal found the "statements and actions in communicating them on Facebook amount to harassment in employment contrary to the code. The comments clearly were vexatious and related to an incident that occurred in the workplace. The respondent knew or ought reasonably to have known her comments were unwelcome to the applicant." The tribunal instead ordered the employee to complete the Ontario Human Rights Commission's online training program and to provide written confirmation to her co-worker upon completion. Although the co-worker did not include his employer as a respondent, employers can nonetheless be held vicariously liable for the actions of employees, even if they are not directly involved in the misconduct. A proper social media policy can shield employers from vicarious liability in such situations. Stuart Rudner is a founding partner of Rudner MacDonald, a Toronto-based employment law firm. He is author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business. He can be reached at srudner@rudnermacdonald.com or visit www.rudnermacdonald.com for more information. He would like to thank Patrick Pengelly for his assistance in the preparation of this article. Letter to the Editor Manitoba changes minimum wage rules for workers with disability My name is Dave Martin and I am a senior advisor on disability issues with the province of Manitoba. In this role, I report to the Minister responsible for Persons with Disabilities, Jennifer Howard. My reason for writing concerns postings made by managing editor Todd Humber and employment lawyer Stuart Rudner in separate editions of Canadian HR Reporter — Mr. Rudner in July 2013 and Mr. Humber in August 2011. In the postings, you both argue that laws allowing employees with disabilities to be paid less than minimum wage should not exist in Canada. I am pleased to inform you the government of Manitoba agrees with you. On Dec. 5, 2013, Bill 15 received royal assent, thereby repealing sections of the province's Employment Standards Code involving payment of less than minimum wage to employees with disabilities. While this action ensures workers with disabilities will now be paid at least Manitoba's minimum wage, provisions have been made to permit a small number of existing sub-minimum wage arrangements to continue. This decision was made to not jeopardize longstanding employment situations agreeable to the employee and employer. These cases will be monitored by the director of employment standards to see the interests of the employee with a disability are protected. In closing, thank you for your interest in this issue and your concern for the rights of people with disabilities. Dave Martin Senior Advisor on Disability Issues Province of Manitoba Winnipeg

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