In Canada, a recent Ontario arbitration decision serves as a cautionary tale for employers who use social media to interact with customers and clients.
As we all know, the rapid growth of social media has changed the way people communicate and transformed many aspects of daily life. Employment relationships are no exception. In recent years many employers have addressed the use of social media by employees. However, a recent labor arbitration ruling has turned the tables and shifted the focus to examining the employers’ use of social media.
Facts
Amalgamated Transit Union Local 113, which represents Toronto Transit Commission (TTC) employees, brought a grievance that challenged the employer’s use of social media. The focus of the case was on the use of the @TTChelps Twitter account. This account is used to receive and respond to customer service questions and concerns. Anyone with a Twitter account can send a tweet to @TTChelps by including “TTChelps” in a tweeted message.
Some of the tweets received by @TTChelps are critical of the service provided or the manner in which employees perform their job. What was described as a “small but significant minority” of the tweets contained language that is offensive, abusive, vulgar, racist, sexist, homophobic, and/or threatening. When @TTChelps received a profane or otherwise inappropriate tweet directed at a TTC employee, it generally would send a response acknowledging the customer’s frustration and asking the customer to refrain from making offensive comments.
The union alleged that the TTC was allowing its customers to use Twitter to make comments that made the employees feel intimidated, bullied, harassed, and threatened. It was the union’s position that @TTChelps was allowing the abuse of employees to spread and that the TTC was doing nothing to stop it. It was argued that the TTC’s conduct facilitated a forum for abuse and violated its obligations to provide a workplace that is free of harassment.
The union argued that it would be a double standard if the principles applicable to employee misuse of social media were found to be inapplicable to an employer. To support its argument, the union presented screen shots of the offensive tweets that were sorted into categories such as derogatory language, pictures, etc. Union witnesses expressed the view that if the TTC could not govern what was tweeted @TTChelps, the site should be taken down.
The TTC countered that it had a right to establish a social media presence through a Twitter account for the purpose of communicating with the public and with its users. Arguing that @TTChelps is simply a neutral form of technology that is not in and of itself discriminatory or harassing, the TTC stressed that it is not possible to prevent all behavior that amounts to harassment or disrespectful behavior toward employees and that there are limits to the power of employers to anticipate and control such behavior.
Decision
Ontario Arbitrator Robert D. Howe ruled that the TTC did not effectively protect its workers from harassment on its @TTChelps Twitter account. He found that the TTC failed to take all reasonable and practical measures to protect employees from harassment and that their current responses to offensive tweets were inadequate.
Howe recommended that TTC respond to such tweets by indicating it does not condone offensive tweets, requesting that the tweeters immediately delete their offensive comments, and then blocking tweeters who do not comply. He also went as far as suggesting that if Twitter is unwilling to provide assistance in having offensive tweets deleted, then the TTC should consider whether the TTC should continue to use @TTChelps.
The arbitrator also noted that under the Ontario Human Rights Code and the TTC’s collective bargaining agreement, employees are entitled to a workplace free from harassment and discrimination and that social media sites operated by the TTC should be considered part of the workplace.
Takeaway for employers
Although this appears to be the first case concerning employer misuse of social media, it is clear that employers in Canada using social media should consider their social media presence and that the principles applicable to employee misuse of social media may apply to employers.
Under the Ontario Occupational Health and Safety Act, employers have a responsibility to ensure that their workplace is free from violence and harassment. The Ontario Human Rights Code places a further obligation on employers to ensure that employees are free from discrimination and harassment in the workplace. Notably, this decision expanded the definition of workplace to include social media sites operated by the employer.
Social media can be a powerful business tool, and social media platforms, such as Twitter, allow employers to facilitate a direct line of open communication with a mass audience. This decision suggests, however, that each employer must take ownership and responsibility to ensure its employees are free from harassment, and this includes harassment in the form of social media communications. This is a new territory for employers. Employers should carefully consider how to craft their social media presence to ensure that it does not run afoul of obligations to provide a workplace free of harassment.
