Employers are also responsible for what they do on social media, as the TTC recently learned
By Howard Levitt
In most cases when we talk about social media in employment law, the discussion involves employees being terminated for damaging their employers’ reputations through online postings. But few people know employers have a reciprocal duty to their employees in administering their online accounts.
In a recent arbitration decision involving the Toronto Transit Commission, the Amalgamated Transit Union, which represents its workers, successfully grieved the TTC’s use of social media because it was damaging to the employees.
This grievance related to the @TTChelps Twitter account, which was monitored by six senior service representatives employed in the Customer Service Centre, who used the account to receive and respond to comments and concerns from TTC patrons and the general public. A small minority of the tweets received in this Twitter account contained offensive, abusive, racist, homophobic, sexist and threatening language, some of which was critical of the the manner in which TTC employees performed their work.
The problem occurred when the TTC failed to put an end to inappropriate tweets directed at employees. Instead, management simply acknowledged the customer’s concerns, provided information on how to file a complaint, or stated the TTC does not condone abusive, profane, derogatory or offensive comments, rather than take the side of the employee.
Robert Howe, the arbitrator, noted that the Ontario Human Rights Code, as well as the TTC’s collective bargaining agreement and its internal Workplace Harassment Policy, provide employees with the right to a workplace free from harassment and discrimination. Howe found that the TTC failed to take all reasonable and practical measures to protect its workers from harassment through this Twitter account.
In conclusion, he said the TTC should have responded by not only immediately advising it does not condone such behaviour, but to also request offensive tweeters immediately delete their tweets and if they do not comply, block from further use of the account.
The arbitrator concluded it may even be necessary for the TTC to seek the assistance of Twitter in having offensive tweets deleted, or, as a last resort, consider discontinuing the use of @TTChelps, despite the opportunity it created to interact with customers and the good information it provided.
The arbitrator paid little attention to explanations about how complaints were handled and expert witness testimony suggested customer complaints might be entirely legitimate and that shielding employees from angry customer feedback may be counterproductive.
This decision will be the first of many attempting to curtail employers’ management of their social media accounts inviting comments from customers and the public. While employers have a statutory obligation to protect employees are from violence and harassment in the workplace, this case goes far beyond what is reasonable by also protecting them from angry criticism.
This case provides employees with legal recourse if they are subjected to offensive or abusive comments by third parties on their employers’ social media accounts. Because such accounts are increasingly ubiquitous, these cases could become rife. As an employer, it is becoming increasingly important to monitor your accounts to avoid liability for any third-party postings.
The real cautionary tale, however, is that the TTC’s wounds are partly self-inflicted. Too many employers, including the TTC, have anti-harassment or respect in the workplace policies, which contain ill thought out terms that an employee — union or not — could sue/grieve upon against the employer.
My best advice is do not devise these policies based on a barely conceived kumbaya approach, incorporating policies that feel good but can be used by employees against you in manners you might never have considered. But for the extensive self-restrictions in the TTC’s harassment policy, which went far beyond what the law required, this arbitration case would barely have got off the ground.