Michael Ford (post until Oct. 31/18)

Employers need to protect themselves with social media policies for staff

As people’s personal and professional worlds increasingly blend on social media, employers are well advised to create comprehensive policies to protect themselves from reputational damage and legal jeopardy, says Vancouver privacy and information lawyer Sara Levine.

“It’s really important for businesses to have social media policies in place and to train their employees on them,” says Levine, who practices in association with British Columbia's Alliance Lex Law Corp. 

The policies should articulate what online behaviours are acceptable and unacceptable and make clear that employee social media profiles should not be identified with the business in any way, Levine says. 

“Employees need to understand that their behaviour on social media can impact their employment relationship,” she says. 

The range of potential issues is large.

According to a McKinsey & Company survey cited by Hub International insurance brokerage, the top five risks that executives associate with social media usage are: leakage of confidential information; inappropriate intellectual property distribution; employee distraction from core tasks; posted content reflecting negatively on the company; and inappropriate employee discussions.

One common concern for businesses is the amount of time employees waste on the job using Facebook, Twitter, Snapchat and other social media sites, says Levine. 

Whether employees are on the job or off, businesses need to make clear that certain anti-social online behaviours such as hate speech, bullying, harassment or threats will not be tolerated, she says. 

Workers should also know that bad-mouthing their bosses or company on social media could get them fired, she says. 

In February 2016, Talia Jane, a 25-year-old employee of the San Francisco online site Yelp/Eat24, posted an open letter on Medium.com complaining about a range of frustrations working for the company, including the inadequacy of her salary, according to New York Magazine’s The Cut website. She was fired within hours.

“It's always important to remember that social media is not generally private in that it amplifies your voice,” Levine says. “And it can be copied and shared and forwarded. So it's not like you are in your living room with your friend saying, ‘I hate my job.’” 

Another issue is the risk of employees inadvertently leaking confidential information by their online posts. 

Employees should be aware they could unwittingly divulge sensitive business information by posting even simple comments like, "Been working late for weeks on a complicated deal," Levine says.

Employers themselves need to watch how much and what kind of information they collect on social media about current or potential employees, Levine says.

“Sometimes by going on social media an employer can find out more about an employee than they want to know,” she says.

Levine says she knows of employers who avoid looking at social media postings by job applicants. That way, if they don’t hire the applicant they run less risk of being accused of rejecting them based on their sexual orientation, religious beliefs or other prohibited ground, Levine says. 

In addition, businesses have to challenge employees who make derogatory comments or post unflattering pictures of co-workers, she says. “That affects the workplace. The employer can’t just walk away and say, ‘Well, that’s got nothing to do with me.’”

In United Steelworkers of America, Local 9548 v. Tenaris Algoma Tubes Inc, 2014, a labour arbitrator upheld the 2014 termination of a crane operator who, while off the job, posted derogatory Facebook comments about a female colleague's work ethic and appearance, and included suggestions of performing violent and humiliating sex acts. “This is not ‘off duty’ conduct because it was directed at poisoning (the female employee’s) work environment,” the arbitrator said.

Equally, employers need to protect their employees from online harassment by outsiders, Levine says.

In a recent decision, a labour arbitrator held that a TTC Twitter account inviting public feedback (@TTChelps) was part of the workplace and upheld a grievance that staff were subject to harassment by people who posted discriminatory messages about employees to the account, the Toronto Star reports. 

The arbitrator did not shut down the site but invited the TTC to draft a social media policy.

When creating social media policies, Levine says, businesses should focus on their own distinct needs rather than adopting a template. 

“It’s never a good idea to just pull a policy off the Internet because, as I say to my clients, policies are not boilerplate,” Levine explains. “The purpose of a policy is to describe behaviour. So it has to be relevant to what the organization wants to do, can do and does. You’re going to be held accountable for what it says.”

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