social media and the new workplace: are your brand and ... · employee discipline for social media...
TRANSCRIPT
Social Media and the New Workplace: Are Your Brand and Reputation Protected?
Wednesday, March 8, 2017
Audio
Ques*onsandTechSupport
Speakers
Kseniya Veretelnik Loranger Marcoux Montréal, Québec [email protected] (514) 879-6900
6
Francine Esposito Day Pitney Parsippany, NJ [email protected] (973) 966-8275
Speakers
Jonathan Crotty Parker Poe Charlotte, NC [email protected] (704) 335- 9041
7
Brian Wasyliw Sherrard Kuzz Toronto, Ontario [email protected] (416) 603-6237
Lessons for Employers Based on Developments Under the
National Labor Relations Act
Francine Esposito Day Pitney LLP
“Protected Concerted Activity” • National Labor Relations Act has been employees’
best weapon against employers taking discipline – Provides employees with right to engage in concerted
activities for purpose of mutual aid or protection – Prohibits employer interference with, restraint, or
coercion of employees in exercise of their rights • Do comments:
– Attempt to continue workplace conversation or garner support regarding terms/conditions of employment?
– Attack employer’s products/services or constitute an individual gripe?
• Surprising cases continue….
Scathing Profane Post Protected • Scathing Facebook post calling supervisor and
family vulgar names during union election was not sufficiently outrageous to lose protections based on “totality of circumstances”: – Place, subject matter and nature of communication? – Did employer demonstrate antiunion hostility? – Was employee was impulsive or deliberate? – Did employer consider similar language offensive? – Did employer maintain rule prohibiting language? – Was discipline consistent for similar violations?
• Pier Sixty, LLC and Hernan Perez (2015)
A Mere “Like” May Be Protected • Employees who “liked” former employee’s profane
complaints on Facebook regarding employer’s tax withholding errors did not lose protection by participating in protected discussion in which former employee made unprotected statements
• Comments were: • Part of ongoing discussion that began in workplace • Did not mention or disparage employer’s products • Not maliciously untrue
• Three D, LLC v. NLRB (2015)
Posting Recordings May Be Protected
• Employers cannot prohibit employees from recording (audio/visual) without valid legal/business justification
• Employees protected if acting in concert for mutual aid and protection and no overriding employer interest – Protected activity includes documenting/publicizing
hazardous working conditions or discussions about terms/conditions of employment, and preserving evidence for later use
– Exceptions include State laws requiring two-party consent to audio recordings and health care privacy
• Whole Foods Market, Inc. (2015)
Employees Can’t Be Made to Remove Posts • Employee was asked and agreed to remove Twitter
posts criticizing employer practices and responding to customer with comments regarding low wages
• Posts were protected as they “were truly group complaints” (even if employee did not confer with other employees before posting them) and had the purpose of educating public/creating sympathy and support
• Required removal implicitly prohibited future posts • Chipotle Services LLC v. Pennsylvania Workers
Organizing Committee (2016)
Comments on Recruiting Site Not Protected
• Employee’s anonymous discrimination and “micromanagement” complaints against employer on recruiting site not protected activity because: – Site directed toward recruits, not co-workers – No call for action or ability for others to comment – No evidence others agreed – Individual gripe; was upset when posted – Discrimination claim was maliciously untrue, disloyal,
and recklessly disparaging; and intended to hurt employer’s ability to recruit
• IXL Learning Inc. (2016)
Take Aways • Ensure reasons for adverse actions do not appear to
be based on participation in protected activity • Implement effective policies and continually review
them to ensure compliance with ongoing requirements • Are policies overbroad, including restrictions on
employees’criticizing employer’s terms and conditions of employment or treatment by supervisors?
• Train managers and employees on their responsibilities and pitfalls of social media use
• Avoid mistakes due to ignorance/hasty decisions • Confer with counsel regarding ongoing developments
Can an employer in Canada discipline or dismiss an employee for
off-duty conduct that damages the reputation of the company?
Kseniya Veretelnik Loranger Marcoux
Introduction
• Basic rule: What employees do on their free time is their business
• Exception: The employee’s off-duty behavior causes harm to the business or to the operation of the workplace
• Employer’s legitimate business interests VS Employee’s right to privacy, freedom and expression.
Employee Discipline for Social Media Use
• City of Toronto v. Toronto Professional Fire Fighters’ Association (Bowman and Edwards grievances) (2014) : Dismissals for inappropriate « tweets »
• Ontario Secondary School Teachers’ Federation v. Simcoe County District School Board (2013): Suspension for inappropriate Facebook remarks
Employee Discipline for Social Media Use
• To justify imposing disciplinary sanctions for off-duty use of social media, the employer must demonstrate a sufficient nexus between the behavior and the company. Ontario Public Service Employees Union and Ministry of Community Safety and Correctional Services (2016)
• In selecting the appropriate disciplinary measure, the employer must apply the usual principles, such as cumulative cause and progressive discipline.
Kim v. International Triathlon Union (2014)
Employee Discipline for Social Media Use
• The importance of a social media policy : – Prepare – Update – Apply
Reminder for Employers
Employer Obligations: The Digital Workplace
Brian Wasyliw Sherrard Kuzz LLP
Employer Obligations: The Digital Workplace
• What does ‘workplace’ mean? • Any location where company business is
being conducted • Activities that have a connection to the
workplace • The expansion of Employer liability
Employer Obligations: The Digital Workplace
• Twitter and the Toronto Transit Commission • The TTC has two Twitter accounts:
– Using @TTChelps, customers can ask questions and leave comments
– Occasionally, complaints to @TTChelps are aggressive, profane, derogatory and harassing
Employer Obligations: The Digital Workplace
• TTC typically responds one of three ways: – Ignore the tweet; – Provide complaint-line contact information; or, – Advise the tweeter to refrain from using
offensive language.
• Union files a grievance alleging failure to provide a harassment-free workplace.
• Decision: – TTC failed to take all reasonable measures to
protect employees; – TTC should request tweets be deleted and
block tweeters if tweets are not deleted; and, – TTC should seek assistance of Twitter to
remove tweets and perhaps shut down the account.
Employer Obligations: The Digital Workplace
• TTC should not validate the customer’s
version by responding emphatically – “we are sorry that happened to you”.
• Instead the TTC should simply advise the customer to file a complaint!
• TTC directed to create a social media policy that minimizes offensive tweets.
Employer Obligations: The Digital Workplace
Ownership of Employee Social Media Accounts
Jonathan M. Crotty Parker Poe Adams & Bernstein LLP
HYPOTHETICAL
• Employee sets up Twitter account: #AcmeSafetyGlassGuy
• Resigns and changes handle to #SafetyGlassGuy
• Now tweets to same followers list for competitor
• Employer sues for theft of trade secrets • Who wins? Little useful legal guidance in
U.S.
HOW SHOULD EMPLOYERS STRUCTURE EMPLOYEE’S SOCIAL MEDIA USE FOR
BUSINESS PURPOSES?
• Some employers have mandatory participation requirements
• Terms of Service may inhibit company’s ownership claims
• Employers can avoid issues by limiting employee social media use to Company-sponsored platforms
• Business activities only, not personal social media use
SOCIAL MEDIA POLICY PROVISIONS
• Identify social media communications as Company property
• Describe what is considered confidential and proprietary information – Helps establish state trade secret and DTSA
protection • Require transfer of social media
information upon departure from employment
CONFIDENTIAL INFORMATION AND NON-COMPETITION AGREEMENTS
• Similar to policy, designate social media communications as confidential
• Require transfer to employer upon departure from employee
• Creates contractual right to accounts and information
• No guarantee of enforceability • Must balance against benefits of encouraging
employees to creatively use social media to benefit business
Questions & Answers
Conclusions and Wrap Up
Contact Our Speakers for More Information
Francine Esposito Day Pitney Parsippany, NJ [email protected] (973) 966-8275 Jonathan Crotty Parker Poe Charlotte, NC [email protected] (704) 335- 9041
Kseniya Veretelnik Loranger Marcoux Montréal, Québec [email protected] (514) 879-6900 Brian Wasyliw Sherrard Kuzz Toronto, Ontario [email protected] (416) 603-6237
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