managing social media disasters - hrpa...social media by the numbers (cont.) 4. social media by the...

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Managing Social Media DisastersJennifer Heath – Piccolo Heath LLP

2Agenda

Agenda

• Social Media by the Numbers

• Not just a time “waster”

• Case Studies on Social Media Misconduct

• Managing Fallout – The Plan

• Preventative Practices and Policies

3Social Media by the Numbers

Social Media by the Numbers• Social media has a strong foothold in Canadian society

• Nearly 58% of Canadians (21.2M people) are reported to be social media users in 2017

• 50% of Canadians are registered to more than one platform on social media

• Smartphones are the primary form of Facebook access with nearly 90% of Canadians accessing it through their smartphone device

• Early 2017 predictions forecasted:

• more than 1/2 of the population of Canada (51.8%) would access Facebook; and

• ¼ of Canadian internet users, and 35.2% of social media users, would use Twitter regularly

• The numbers are only growingSource: media incanada.com – A look ahead at Canada’s social media penetration: eMarketer [2017]

http://mediaincanada.com/2017/07/13/canadians-over-index-on-twitter-use-emarketer/

4Social Media by the Numbers (cont.)

Social Media by the Numbers (cont.)

• Social media is also prevalent in the workplace

• 90% of employees use social media during work hours

• 67% of employers are dealing with employees’ inappropriate non-business use of social media

• But – social media is not just a “time waster”Source: “Social media misuse taking a dark turn”

http://www.hrmonline.ca/hr-news/social-media-misuse-taking-a-dark-turn-200731.aspx?keyword=social%20media



• Social media is also useful and necessary element in the workplace:

1. Establishing a brand

2. Customer and client engagements

3. Employee engagement

”



• There are many forms of social media “misconduct”:

• Misuse of confidential information (80%)

• Misrepresenting the views of the employer (71%)

• Disparaging remarks about the employer or other employees (64%)

• Harassment (64%)Source: “Social media misuse taking a dark turn”

http://www.hrmonline.ca/hr-news/social-media-misuse-taking-a-dark-turn-200731.aspx?keyword=social%20media


Case Studies on Social Media Misconduct

1. Off-duty misconduct goes viral

2. On-duty misconduct goes viral

3. Breaching confidentiality

4. Disparaging remarks

5. Bullying

8Social Media Misconduct – Case Study 1

Case Study 1

• Off-duty inappropriate comments go viral:

• After a Toronto FC sporting event, several men shout crude remarks into a reporter’s microphone during a live TV airing. The comments included, “F*** her right in the p****” and “You’re lucky there’s not a f**king vibrator in your ear like in England.” The video goes viral, with one of the men being identified as an employee (engineer) of Hydro One.

• Question – How should Hydro One respond?


Case Study 1: Off-Duty Misconduct

• What really happened?

• Hydro One fired the employee

• He was unionized and the union grieved the termination

• Employee was re-instated six months later

• Arbitration proceedings were not made public – the details of the decision and the reinstatement are unknown


Case Study 1: Off-Duty Misconduct

• Lessons:

• Immediate response to negative PR vs. ultimate outcome – weigh the costs

• Thorough investigation and well-thought out discipline

• Consider the Kelly v. Linamar case – relationship between:

• Behaviour

• Employer’s reputation

• Employee’s ability to perform the work duties

• Wording of termination letter is important - must articulate the reason for termination


Case Study 2(a)

• On-duty misconduct goes viral

• Tweeting for marijuana:• In August 2013, a Vaughan man was caught sending out a tweet while at work asking to

have drugs delivered to his workplace. The tweet read:

• “Any dealers in Vaughan wanna make a 20sac chop? Come to Keele/Langstaff Mr. Lube, need a spliffor two to help me last this open to close”

• The employer was alerted via the York Regional Police

• Question – How should the employer respond?


Case Study 2(a): On-Duty Misconduct

• York Regional Police saw the tweet and informed his employer• The employee’s employment was terminated soon after


Case Study 2(b): On-Duty Misconduct

• Purolator employees were caught on film rough handling and throwing customer freight from an airplane into a Purolator delivery vehicle. Airport onlooker records the behaviour and uploads and sends the video to CTV news, which is subsequently broadcast TV.

• Question – How should Purolator respond?


Case Study 2(b): On-Duty Misconduct


• Purolator fired the employee for just cause

• Union grieved the termination

• Labour Arbitrator upheld the grievance and substituted a three day suspension for the termination


Case Study 3(a)

• Breaching confidentiality:

• An outpatient of Credit Valley Hospital jumped to his death from one of the facility’s multi-level parking garages. An employee who was assigned to assist with the clean-up of the incident took pictures of the scene with his cell phone, and later posted them to his Facebook page.

• Question – How should the hospital respond?


Case Study 3(a): Breaching Confidentiality


• Hospital fired the employee for violating its Code of Conduct (relating to confidentiality and privacy) and breaching patient confidentiality

• Labour arbitrator upheld the dismissal:

• Employee’s actions were not spur of the moment

• “By…taking the pictures and posting them on his Facebook page with comments, [the employee] without any justification has put his own self-interest and feelings ahead of the… obligation on employees to maintain the confidentiality of patient information.”


Case Study 3(b) – Breaching Confidentiality

• A personal care giver employed at a home for the aged created a public blog site where she published resident information and photos without consent and posted inappropriate comments about residents and fellow employees.



Case Study 3(b) – Breaching Confidentiality


• The municipality terminated the employee’s employment for cause

• Labour arbitrator dismissed the grievance and upheld the dismissal, focusing on:

1. Breach of confidentiality cgreement

2. Insubordinate behaviour

3. Disregard for patient care


Case Study 3(a) and (b)

• Lessons:

• A written, acknowledged confidentiality policy will serve employers well

• Impact on third parties is an important factor

• Violations that go to the core of the services the employer provides are considered more egregious


Case Study 3(c): Breaching Confidentiality

• Whistleblowing through social media:

• A Corrections Officer (CO) working at the maximum-security Central North Correctional Centre in Penetanguishene tweeted graphic photos of unsanitary and inhumane conditions experienced by inmates in segregation. The CO also tweeted about conversations had between two other corrections employees about inmates. His tweets went viral and were picked up by the media.



Case Study 3(c): Breaching Confidentiality • The CO received a letter from the Ministry of Community Safety and Correctional Services in July

2017 to discuss his “inappropriate use of social media” and breaches of their policies


Case Study 3(c): Breaching Confidentiality

• Lessons:

• Having a social media policy is important, but it may not account for whistleblowing

• Employer’s response to whistleblowing may result in reputational harm

• Consider well-thought out whistleblower policies and mechanisms to avoid employees turning to social media


Case Study 4(a)

• Disparaging remarks:

• Employee involved in workplace safety incident about the tripping of a motor. No one was hurt. She took to Facebook to vent about the scare and her opinion as to the safety of her workplace, and posted highly offensive, vulgar, threatening and disparaging remarks about the company and her managers.



Case Study 4(a): Disparaging Remarks

• What really happened?• “The safety attitude at CBPPL is really awesome, 2 employees barely escaped death

when a motor they were cleaning around arced out […] here, with these half retarded baymen management they think it’s cheap...er to replace the employee than the equipment. I was one of these Employees […] When I get back, [managers], be sure you KNOW, I won’t stop until You draw a welfare check or are behind bars […] Lets see how insignificant you feel when you Got a rope around ur neck […] Don’t normally like revenge but by the Jesus I’m goin to [profanity] REAM you”

• Employee’s employment was terminated for cause

• Labour arbitrator upheld the dismissal


Case Study 4(a): Disparaging Remarks

• Lessons:

• Thorough investigation to confirm facts, intent and “excuses”

• Consideration of health and safety obligations to other employees

• Overlapping misconduct will strengthen the basis of cause (i.e. threats, insolence, profanities, reputational harm)


Case Study 4(b): Disparaging Remarks

• Former Uber CEO and founder of Uber Travis Kalanick caught on camera making disparaging remarks to Uber driver following a discussion of price drops and the associated impact on drivers.

• Kalanick: “You know what? Some people don't like to take responsibility for their own s***. They blame everything in their life on somebody else. Good luck!"


Case Study 4(b): Disparaging Remarks

• What happened:

• Kalanick delivered an apology email (excerpt below):

• “It’s clear this video is a reflection of me – and the criticism we’ve received is a stark reminder that I must fundamentally change as a leader and grow up […] This is the first time I’ve been willing to admit that I need leadership help and I intend to get it”.


Case Study 4(a) and (b): Disparaging Remarks

• Lessons:

• Employers and executives must also be aware that their actions will be viewed under a microscope

• Consideration to be given to other external aggravating factors and how they may contribute to public perception of the CEO and, ultimately, the employer


Case Study 5

• Bullying:

• Grievor posted a complaint about his co-worker on Facebook without naming her. Comments between Grievor and other employees escalated over two hours to include discussion of her work ethic, distinctive physical characteristics, suggestions of performing physically aggressive and violent humiliating acts suggesting sexual assault, and mention of a cruel nickname.



Case Study 5: Bullying


• Employer conducted an investigation into the online behaviour

• Employer terminated the employee’s employment for cause

• Labour arbitrator upheld the dismissal



• Lessons:

• Direct impact on the workplace (i.e. on other employees) is a key factor

• If it would warrant discipline at work, doing it off-duty / off-site doesn’t insulate the employee from discipline

• An employee’s lack of remorse/remediation will warrant more serious discipline

• Obligation to maintain a safe workplace doesn’t stop at the workplace door



• Lessons (cont’d):

• Canada Post Corp. v. C.U.P.W. (2012 Can. Arb.)

• There is ample case law that supports the principle that what employees write in their Facebook postings, blogs, and emails, if publicly disseminated and destructive of workplace relationships, can result in discipline…

33Managing Fallout – The Plan

Managing Fallout – The Plan

1. Gather information about the incident

• What happened and who was involved?

• What is the nature of the misconduct?

• What is the impact on the employer and the employee?



2. Take immediate steps to minimize impact on business

• Remove employee from workplace if appropriate

• Dissociate from comments made by employee

• Conduct quick but appropriate investigation



3. Consider whether conduct is prohibited by workplace policies/plans

• Violence and harassment policies

• Confidentiality policies

• Social media policies

• Last chance plans/code of conduct



4. Determine whether discipline is warranted

• If warranted, impose discipline as soon as possible

• Notify appropriate parties of outcome



5. What is the appropriate disciplinary response?

• Termination for “just cause” – three part test:

• Determine the nature and extent of the misconduct

• Consider the surrounding circumstances

• Decide whether dismissal was warranted

• In short, it’s not an easy threshold for employers to meet

38Managing Fallout

Managing Fallout

• Nature and extent of the misconduct – four factors for off-duty misconduct:

• Conduct harms the employer’s reputation or product

• How large is the audience?

• How serious is the harm, or the risk of harm?

• Conduct renders employee unable to perform duties

• Refusal or reluctance of others to work with employee

• Employer’s ability to manage business and workforce

39Managing Fallout (cont.)

Managing Fallout (cont.)

• Consider the surrounding circumstances:

• Employee’s length of service and disciplinary record

• Has progressive discipline been applied?

• Was the incident a one-time flare-up?

• Nature of employee’s position

• Employee's response when confronted

• Does conduct lead to breakdown of employment relationship?

40Managing Fallout – Another Case Study

Managing Fallout – Another Case Study

• Toronto (City) v. Fire Fighters’ Association (2014 Ont. Arb.)

• Firefighter dismissed for inappropriate off-duty use of Twitter

• Twitter handle featured photograph in firefighter uniform

• Labour arbitrator upheld the dismissal:

• “The job involves more than attending at a fire… The other part of the job… is the part that requires him to conduct himself in a way that brings honour to the uniform. I have to wonder if a deaf person, a woman in labour, a member of a visible minority group, apprised of his comments, would welcome this man into their home in a time of need.”

41Preventative Practices

Preventative Practices

• Implementing social media policies

• Create new policies and update archaic ones

• Avoid one-size-fits-all approaches

• Consider social media’s impact on other policies

• Ensure employees acknowledge policies and receive training

• Secure a signed acknowledgement if possible

• Remind of ongoing obligations

42Preventative Practices (cont.)

Preventative Practices (cont.)

• What should be in a social media policy?

• Define social media broadly – social networks, blogs, etc.

• Policy should apply to both temporary and permanent posts

• Outline expectations regarding off-duty social media use

• Broad obligation to use responsibly and with good judgment

• Employees post in own name – disclaimer where necessary

• Employee requires authorization of employer to speak on behalf

• Public-facing employees should make their social media pages private

43Preventative Practices (cont.)

Preventative Practices (cont.)


• Outline expectations regarding off-duty social media use (cont.)

• Protection of confidential information and intellectual property

• Employee’s online activity must comply with all other workplace policies, including those on harassment and non-disparagement

• Contemplate both direct and indirect conduct

• No expectation of privacy in content disseminated online

• Set out consequences for failure to comply with policy

44Preventative Practices?

Preventative Practices?


• Consistent, swift and effective discipline

• Particularly important in a unionized setting

• Acting swiftly and consistently in minor situations will deter others or put them on notice

45Conclusion

Conclusion

• Parting words of wisdom:

• “[Social media] is a great place to tell the world what you are thinking before you have had a chance to think about it.”

- Chris Pirillo, Online Blogger

46Stay in Touch

Stay in Touch

managing social media disasters - hrpa...social media by the numbers (cont.) 4. social media by the...

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