Canadian HR Reporter

CANADIAN HR REPORTER September 5, 2016 10 NEWS HR Manager's Guide to Employment Files and Information Management: Legislation and Best Practices uniquely addresses the management of all types of employee information throughout the employment lifecycle, from recruitment to termination. Employment information and documentation management carries legal requirements that protect an organization from litigation, and are essential to the creation of sound policies for efficient, effective, and ethical business practices. Easy to read and understand, this new guide provides Human Resources professionals and others who deal with employee files, either electronically or in paper format, with: • Key legislation and emerging case law • Best practices in the areas of privacy, records retention, human resources information systems (HRIS), and information security • Practical guidance, tools and templates, such as sample policies • Information on all Canadian jurisdictions Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # 986618-65203 $70 Softcover approx. 100 pages April 2015 978-0-7798-6618-2 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. New Publication HR Manager's Guide to Employment Files and Information Howard A. Levitt, B.A., LL.B., and Tanya Neitzert, B.A., CHRP Brought to you by: © 2016 Thomson Reuters Canada Limited 00228VC-A49657-E98871 the community," he said. Workplace harassment has been focused a lot on employee- on-employee or manager-on- employee but there hasn't been a great deal of discussion about the public-on-employee, said Sean Bawden, a partner at Kelly Santini in Ottawa. "I think we're going to see more of that, so I think employers need to be aware of the potential for employees to say, 'You haven't protected me from the vitriol online.'" Existing case law generally deals with inappropriate behav- iour by employees on their own social media accounts, according to Mark Mendl, a partner at Baker & McKenzie in Toronto. "is case is a bit of a twist, it deals with an employer's obliga- tions on a social media account it operates for the benefit of the gen- eral public who uses its services, so that kind of is a new direction that we're seeing in the case law." e case looks at the obliga- tion on employers to take steps to protect or at least address abusive, harassing or intimidating behav- iour by the general public against employees, he said. "There's a longstanding and well-established obligation on employers to take steps to reason- ably protect their employees from dangers in the workplace. I think what we're seeing now is that the courts and tribunals are readily looking at social media as being at least one aspect of the workplace," said Mendl. "e decision provides at least a jumping-off point as to what may be required if you're operating a social media account. But this al- ways going to be a context-sensi- tive inquiry." Background e Twitter account @TTChelps started in 2012 and has been used to receive and respond to custom- er service questions and concerns. But Amalgamated Transit Union Local 113 filed a grievance in 2013 about the TTC's use of social me- dia, including Twitter, to publish personal information, to receive and make complaints, and to solicit public comment about its members. Many of the tweets were criti- cal of TTC service and employ- ees, and often the TTC would tweet back with phrases such as "Sorry to hear that" or "That's not good." While these kinds of responses could indicate an ac- knowledgement an employee has done something wrong, manager Sue Motahedin said they were ex- pressions of empathy. "We are trying to let them know we're listening and we care. I think they help de-escalate certain situ- ations," she said. A number of the tweets were also derogatory, abusive, offensive and inappropriate. But when one employee expressed concerns, he was told "You can't stop the pub- lic from what they say on Twitter" by Brad Ross, executive director of corporate communications at the TTC. e union was also unhappy that employees' photos were sometimes posted to the Twitter feed, along with badge numbers identifying workers. And they did not like that @TTChelps tweets seemed to indicate an investiga- tion into a complaint would be done. During the course of the ar- gument, reference was made to Ontario's Occupational Health and Safety Act (OHSA) and Hu- man Rights Code (HRC), along with the TTC's collective agree- ment and policies when it came to workplace harassment, work- place violence, employer respon- sibilities and discrimination, along with investigations into complaints and discipline. In essence, the union felt the TTC's use of social media was breaching obligations to union members by soliciting confiden- tial, private information about employees, and having a public discussion about private matters. e employer was also providing a forum for haters and abusers to heap abuse on members, it said, and could not or would not effec- tively deal with that abuse. But the TTC felt it had a right to establish a social media presence through Twitter to communicate with the public and its users. And while it did not have a social me- dia policy per se, its existing poli- cies were sufficiently broad and robust to address any employee concerns. It also felt a Twitter account was a neutral form of technology that was not, in and of itself, dis- criminatory, harassing, violent or a breach of privacy. And members of the public would always find ways to take photos or videos of employees and post them online. TTC employees also should be accountable to the public, said the commission, and it was anti- democratic to suggest customers didn't have a right to complain. And while discipline around a complaint should be kept private, there was no evidence to suggest a particular employee's privacy had been violated since a badge num- ber was not private information and a person providing a public service had no reasonable expec- tation of privacy. Decision In the end, Howe said the Twitter account should not only indicate the TTC does not condone such harassment but it should request tweeters immediately delete of- fensive tweets, and photographs, and advise them that if they do not do so, they will be blocked. It should also block tweeters, if necessary, and seek Twitter's help when necessary, he said. And while it was troubling to have allegations of misconduct by particular TTC employees includ- ed in tweets that could be viewed by others, he said, "eliminating @TTChelps would not preclude information of that type from be- ing posted on social media." As for apparent expressions of empathy by TTC employees, these could readily be interpreted as accepting that what the cus- tomer tweeted actually happened, validating the worker did some- thing wrong, said Howe. So, in- stead, @TTChelps should simply tell people how to file a complaint. "Greater care needs to be taken to ensure that the information provided by @TTChelps is accu- rate and that it does not include inappropriate editorializing," he said. "Developing templated re- sponses mutually acceptable to the employer and the union might well be of assistance to the senior service representatives who respond to tweets received by @TTChelps, and beneficial in ensuring that the responses they provide are not violative of the TTC's collective agreement or statutory obligations." However, the arbitrator did not feel it was necessary or appropri- ate to shut down @TTChelps as it "permits the TTC to provide useful information to custom- ers. Hopefully, the relatively small number of offensive tweets re- vived by that social media site can be further reduced, if not totally eliminated, by lesser measures such as the ones described above and the development of a TTC social media policy." Implications for employers The case speaks to the obliga- tions employers have to workers when developing a social media presence, said David Mangan, adjunct professor at Osgoode Hall Law School at York Univer- sity in Toronto. And while the law has been settled on the matter of employers' obligations regarding a toxic workplace, most often the subject matter relates to interac- tion amongst co-workers. "With this ruling, the obliga- tion also extends to third parties (customers)… a business' social media presence that is interac- tive with the public would need to also be a space free of 'language that is vulgar, offensive, abusive, racist, homophobic, sexist and/ or threatening,'" he said. "Prudent employers, if they have not al- ready, would be more considered in how they manage the param- eters of customer or public inter- action on social media platforms." "ese steps may seem to be more onerous to business and can therefore lead to a criticism of the law, as applied in this decision, as placing employers in a situation of regulating speech. e deci- sion reinforces the premise that employers are empowered to do so where comments violate em- ployers' contractual or legislative obligations to their workers." While the TTC might feel people are going to use Twitter anyway to make complaints, the union felt the employer "was put- ting up a target for people to aim at, and that was accepted," said Bawden. As to the suggestions that @TTChelps should tell people to file a complaint, "my prob- lem with that is that the public is not going to be too keen to fill out these forms," said Bawden. "at's really what this comes down to, is that people were venting about a bus being late… and the union took affront that people were doing that. at re- ally does seem to be what it came down to — 'How dare you allow members of the public to com- plain about service issues?'" And when it came to allegations of empathy, the TTC's argument about de-escalation was under- standable, said Bawden. "(It's a) desire by the employer to try and calm people in the mo- ment, I absolutely see that, and a blunt pro forma response is not going to do that. at's not the point of social media, that's not why people are reaching out, to be patronized." But it is surprising the TTC didn't have a social media policy, he said. "e TTC is not a mom and pop operation, so yeah... it's a little surprising." e starting point is having a good policy in place, said Mendl. "If employers are operating a social media account that invites feedback on staff, there should be a policy in place that addresses what the organization will do in the face of harassing, threatening or otherwise abusive behaviour," he said. "But the policy itself is only the starting point, it's only as good as the action that's taken in the face of these kinds of posts to social media." And while the decision did look at employee privacy issues, it's more about taking reasonable steps to address abusive behaviour towards employees, said Mendl. "From an organization's per- spective, it's a big ask to say that you should be policing what the general public says… that be- comes a challenge for an organi- zation where you've set up an ac- count for social media specifically to address customer complaints," he said. "ere's a clear message that they've got to do more." 'Inappropriate editorializing': Arbitrator TTC < pg. 1 "A business' social media presence that is interactive with the public needs to be free of 'vulgar, offensive, abusive' language."

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