Social Media and the New Workplace: Are Your Brand and Reputation Protected? Wednesday, March 8, 2017

Transcription

1 Social Media and the New Workplace: Are Your Brand and Reputation Protected? Wednesday, March 8, 2017

2 Moderator Brian Wasyliw Sherrard Kuzz Toronto, Ontario (416)

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5 Audio Ques*ons and Tech Support

6 Speakers Francine Esposito Day Pitney Parsippany, NJ (973) Kseniya Veretelnik Loranger Marcoux Montréal, Québec (514)

7 Speakers Brian Wasyliw Sherrard Kuzz Toronto, Ontario (416) Jonathan Crotty Parker Poe Charlotte, NC (704)

8 Lessons for Employers Based on Developments Under the National Labor Relations Act Francine Esposito Day Pitney LLP

9 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.

10 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)

11 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)

12 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)

13 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)

14 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)

15 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

16 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

17 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.

18 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

19 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)

20 Employee Discipline for Social Media Use 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)

21 Reminder for Employers The importance of a social media policy : Prepare Update Apply

22 Employer Obligations: The Digital Workplace Brian Wasyliw Sherrard Kuzz LLP

23 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

24 Employer Obligations: The Digital Workplace Twitter and the Toronto Transit Commission The TTC has two Twitter accounts: customers can ask questions and leave comments Occasionally, complaints are aggressive, profane, derogatory and harassing

25 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.

26 Decision: Employer Obligations: The Digital Workplace 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.

27 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.

28 Ownership of Employee Social Media Accounts Jonathan M. Crotty Parker Poe Adams & Bernstein LLP

29 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.

30 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 Companysponsored platforms Business activities only, not personal social media use

31 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

32 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

33 Questions & Answers

34 Conclusions and Wrap Up

35 Contact Our Speakers for More Information Francine Esposito Day Pitney Parsippany, NJ (973) Jonathan Crotty Parker Poe Charlotte, NC (704) Kseniya Veretelnik Loranger Marcoux Montréal, Québec (514) Brian Wasyliw Sherrard Kuzz Toronto, Ontario (416)

36 Please Complete our Survey Please complete the survey that should appear on your computer screen when you disconnect from the webinar. To listen to this webinar again or to any past ELA webinars, please visit our website at: A Certificate of Attendance and supporting materials are posted on the ELA website (click this webinar s title; the link to the Certificate is on the landing page). Attendees seeking continuing education credit should submit these materials directly to the appropriate organization.

37 For More Information If you have any ques.ons, or need further informa.on please contact: Mary Anne Creighton, Director Member Rela.ons