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Managing illegitimate employee expression
 

Managing illegitimate employee expression

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  • I’m here to speak to you, alone, because I’ve had a personal blog for three years and have lived to tell about itHow many of you have a FaceBook page? LinkedIn account?Twitter account?Blog?How many of you have no idea what I’m talking about?That show of hands amongst this austere crowd is certainly proof that social media is a significant social phenomenonWe know you, as HR pros and legal counsel, are dealing with issues created by social media on a daily basisI’m going to address three particular issues
  • Let’s start with a scenarioThis is what happened in the old daysHow many of you think the employer has a legitimate beef?No… it’s private rightAnd there’s some social utility to this exchangeBob and Sue feel betterThey go home and treat their families betterAcross the population health care costs go down
  • Sadly, this is what happens todayNow how many of you think an employer has a legitimate beef with this?What if he only has ten friends?What if none of those friends work for the company?Some might argue for change, but the traditional legal view would be that this is a publication and not private activity regardless of the detailsThis makes sense because Jack’s friends are not bound to confidentiality… they can do anything they want with that informationPrivacy advocates may argue otherwise (non-binary view)***Problem is that this feels private to employeesSince our last client conference we've been telling you to help them understand that it is not, and that they’re going to be accountable for statements like thisAnd if you don’t already, you should have a internet publication policy that makes this clear
  • But how far can you go?You all know that current employees have a duty of loyalty and fidelityThis is a kind of test to administer when you run into borderline casesAsk yourself,, “Is the conduct likely to significantly affect a legitimate company interest?”If yes, and the conduct conflicts with the interest, you’ll have a basis for sanctionIf not, it’s private activityNow this test is applied in a very contextual mannerThere are a thousand factors that can tip the balance one way or the other, and the borderline cases can be very value laden and hard to call
  • Here are the links back to employer interests that you’ll typically look forAnd I’ve ordered them in order of moral weightThe strongest kinds of nexus are those based on your duty to provide a safe and harassment free workplace to other employees… (link based on speaker’s daily presence in the workplace can be enough)The next strongest kind of nexus one that is based on an interference with job duties… a teacher must be a model of tolerance and respect, for example, and intolerant public expression may conflict with that dutyAnd finally, there’s the harm to reputation basis. This is a legitimate basis for protection, but I’m going to suggest that it’s a much better basis when employees make comments directly about their employers. It’s a weak basis, for example, when employees are merely identifiable as employees and say something silly that may indirectly affect the employer. If its just silly and the employee’s own reputation is not tied to her job responsibilities, then it may be fair to characterize the silliness as private.
  • So that’s issue number oneIssue number two is about corporate use of social mediaHere’s a scenario that illustrates a danger of jumping on the corporate communications social media bandwagon without thinking through some important employment-related issuesHow many of you are concerned that Tim has just assigned work?
  • I amHere are the two legal risks flowing from that statement…And I think they are relatively self-explanatory to most of youSo as HR or legal, reach out to your communications prosWork with them, but make sure they understand these risks
  • The safe model is to be very clear about who gets to speak for the companyYou license and deputize themView them as your non-professional corporate communications staff and make sure you control what they can say (because you’re responsible)It can be adjunct to their main duties, but it should be viewed as workThis doesn’t mean you have to pay them more, but it means you have to ensure that the time and effort expended is known and controlled and encompassed by whatever existing compensation arrangement you haveEveryone else is restricted from saying bad things about the company and certainly is free, if they choose, to say nice things about the companyMoreover, companies can certainly create communities to draw employees in at their own volition without attracting the risks we’ve identified
  • The last issue I’ll deal with relates to expression by outsidersFor us, this typically means former employees who want to take a short at their old managers or parents of students who have a beef to grind with a school administrator or teacher
  • The challenge is in managing outsiders is that you don’t have a direct means of controlYou can appeal to the organization hosting the content, but your ultimate appeal is to courtAnd the specific words spoken must be illegalIf not, you have no basis for a takedown
  • These are four optionsSteps may be taken in defence reputation or to stop harassment
  • Managing situations where employees are targeted is very trickyHere’s what to always remember – the company’s reputation and the employee’s reputation are differentYou have to recognize thisWhen you call us on the phone we’re talking to you as the organization’s counselOur immediate concern is to keep you safe from a non-management claim by the targeted employeeIt can be difficult and expensive to stop an online campaignOften in the organization’s best interest is to play low keyGenerally: show support, take one step at a time, don’t inflameYou may align interests if you explain to the employees that if you, as employer, engage on their behalf it is still their reputation that will be put on trialAlways encourage independent counsel (union or legal)We’ve warned, but there will be some employers who as a matter of principle will engage and indemnify willingly… nice idea but insuring employees’ (private/personal) reputation could be expensive depending on your business
  • It’s easier to deal with harm to the businesses reputationIf you call we’ll assess the illegalityBut we’ll also cause you to consider what engagement meansIt signals that the person who is speaking is worthy of attentionThere’s the potential for aggravation – public battle about reputationAnd it’s not good to engage half way (credibility)So ignore and monitor is often a good strategy for businessBut think ahead… have a discussion internally and have a principle that you can apply in determining what you will respond to and what you’ll ignore… will help

Managing illegitimate employee expression Managing illegitimate employee expression Presentation Transcript

  • Managing Illegitimate Employee Expression
    Hicks Morley Client ConferenceMay 2010
    Dan Michaluk
  • Overview
    Can you sanction “private” expression?
    When their expression becomes your expression
    Expression by departed employees and other outsiders
  • Sanctioning Private Expression
    Bob and Sue had a long day. They go to the Dirty Dog Pub after work and, over the course of four hours, take jabs at their supervisor, Phil.
  • Sanctioning Private Expression
    Jack had a long day. He goes home, cracks open a beer, and boots up his home computer.
    Using a picture of his supervisor taken from the company intranet and some internet based software, he alters the picture so the manager looks ridiculous.
    Jack posts it to his Facebook page. He feels good.
  • Sanctioning Private Expression
    Duty of fidelity applies when employee expression is likely to significantly affect a legitimate employer interest
    All other activity is “private”
    But where’s the balance?
  • Sanctioning Private Expression
    Nexus is commonly derived from
    An impact on the rights of other employees
    An impact on performance of job duties
    An impact on reputation
  • When Their Expression Becomes Yours
    Tim is President, Americas at a large organization who fancies himself a social media guru. He sends and e-mail to all that says, “We ought to be leaders in our field. Accordingly, I encourage all of you to use social media to advance our interests.”
  • When Their Expression Becomes Yours
    Risks
    Tim could now be responsible for everything his employees do online
    The company may now be responsible for a large wage and overtime bill for “work” assigned by Tim
  • When Their Expression Becomes Yours
    A better model
    Designated or “licensed” social media users
    Direct them to separate work from personal profiles
    Assert relatively strong control (guidelines, oversight, accountability)
    Pay them for it as work
    Everyone else can use social media subject to regular “internet publication policy”
  • Expression by Outsiders
    Principal Smith is a proud of his long-time stewardship of Sunny Elementary, but has met his match with Mr. and Ms. Sticky who have established an advocacy site focusing on school affairs. They’ve attacked Principal Smith’s judgement by making a number of harsh allegations that are clearly based on incorrect facts.
  • Expression by Outsiders
    The law
    The public is allowed to speak
    Must be a tort or crime
    intimidation, defamation, breach of confidence, copyright infringement, invasion of privacy
    Must look at meaning of specific words
  • Expression by Outsiders
    Non-mutually exclusive options
    Ignore and monitor
    Develop public affairs response
    Takedown demand to infringer
    Takedown notice to third-party host
  • Expression by Outsiders
    When employees are targeted
    The company’s reputation is distinct from the individual’s reputation
    Beware of potential conflict
    Be supportive but don’t engender expectations you’re not prepared to meet
    Encourage independent counsel
  • Expression by Outsiders
    When the business is targeted
    Consider real harms
    Consider downside risk of aggravation
    Try to develop a principled way of distinguishing between what you will and will not act upon
    Save your demand letter for when it matters
  • Managing Illegitimate Employee Expression
    Hicks Morley Client ConferenceMay 2010
    Dan Michaluk