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  • Management lawyer from Hicks MorleyVery open minded about social mediaAlso know risksDeal with them on a near daily basis nowHere’s outline-dealing with employees who blog as employees-dealing with employees who blog as municipality-model for dealing with both risks-hard topic – how to handle when current employees are targeted
  • Here’s a scenario for youSeems kind of yester-yearHow many of you think that Bob and Sue have engaged in employment-related misconduct?Purely privateNo legitimate reason for employer to take issue with thisHealthy in a sense
  • This is the sad reality todayGreat sociological questions about why this happensBut it happensHow many think this is misconduct?What if he doesn’t take the picture from the company?What if he’s publishing only to five friends?
  • Duty of loyalty and fidelity – don’t do something that is likely to negatively affect a legitimate employer interestThat’s the test about whether it is public or notIs it likely to negatively affect an employer interestWe look for “nexus” and the nexus does not have to be physicalToo simplistic, not the law
  • Here are the most common interests that are affectedIn informal order of moral hierarchy-preventing another employee from attending at work… functioning well at work – strong ground-ability to do job – e.g.
  • 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
  • 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
  • Topic number twoInternet publication issueWe might be living with this one for a while eh?Let’s start with a scenario
  • Internet troll scenarioHow many of you have dealt with scenarios like this?How often do on a monthly basis?How bout on a weekly basis?…Key messages for clientsHis/her reputation is different than the company’s reputationWhy is it that you want to make her/his problem yours?You may have a duty to provide a safe and harassment free workplaceBut that doesn’t mean you must engage with an internet troll on their behalfEngagement means true engagement, and comes with many costs
  • If there is a nexus to the workplace, you may have a positive dutyExample-60 year police officer-Police officer bulletin board-Disparage officer… bag of bones… useless… -Officer comes to youNexus? Duty to Act?What might that mean?-Investigate and sanction wrongdoers-Exercise managerial power to cause a “takedown”-Communication to force-And so on…
  • Does it encompass a duty to sue in defamation?Particularly important question when the wrongdoer is not an employee-Parents and educators-Students and educators-Citizen advocates-Irate customers -Irate departed employeesStart by looking at what a defamation claim is about-About harm to reputation-Often about vindication rather than money-Intense -Because of it’s a trial of a reputation -Because injunctive relieve is generally not available -Because the time limits are (arguably) abbreviatedNot a claim for corporationsNot even a claim for most people
  • So…Very questionable that a duty to employee will require engagementMust have interests that are very aligned to justify voluntary engagement-e.g. senior executive-e.g. collateral reputational damage to organization (students)Do check express indemnification promises though(And look at them differently in light of this issue.)


  • 1. Managing Social Media Risks and More
    2011 MFOA Annual Conference
    September 22, 2011
    Dan Michaluk
  • 2. Outline
    Harm from off-duty expression
    So you want to blog eh?
    Policy model for managing social media risks
    Current employees as targets
  • 3. Current Employees as Communicators
    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.
  • 4. Current Employees as Communicators
    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.
  • 5. Current Employees as Communicators
    Duty of fidelity applies when employee expression is likely to negatively affect a legitimate employer interest
    All other activity is “private”
    The kind of social interaction we engage in today is more likely to conflict with employer interests
    Duty of fidelity is the basis for conflict of interest and other restrictive policy
    Charter of Rights and Freedoms invites a very contextual balancing, but duty of loyalty can prevail
  • 6. Current Employees as Communicators
    Employee speech can negatively…
    …affect an employer’s duty to other employees
    …affect an employee’s ability to do his/her job
    …affect public perception of employee performance
    …affect an employer’s reputation*
    *though government entities must tread carefully
  • 7. So you want to blog eh?
    Tim is the CAO at an upper tier municipality 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 municipal interests.”
  • 8. So you want to blog eh?
    Tim could now be responsible for everything his employees do online
    The municipality may now be responsible for a large wage and overtime bill for “work” assigned by Tim
  • 9. So you want to blog eh?
    Trend in Ontario
    Number of Ontario municipalities using social media more than doubled in six months (April to October 2010)
    Grew from less than 20 to well over 50, out of a total of 444 municipalities
    Source: Redbrick Communications
  • 10. Policy Model for Managing Risk
    Municipalities should consider two policies
    One that guides all employees
    One that guides those who are licensed to speak on behalf of the municipality
  • 11. Policy Model for Managing Risk
    Policy for all employees – theme
    You can do it if you want
    Here’s how you meet our expectations
    Be careful
    If you publish to “friends” you’re still accountable
    Identifying yourself as an employee comes with risks
    Identify special risks (e.g., relating to care and control of sensitive personal information)
  • 12. Policy Model for Managing Risk
    Policy for all employees – content
    Start with a statement of principle
    Then rules that address
    Confidential information, personal information
    Respect for other employees, clients, citizens
    Conflict of interest, conflict with job duties
    Time theft
    Refer to other policies
    Offer support
  • 13. Policy Model for Managing Risk
    The operators of the City’s water system have received four reports from residents complaining that their drinking water has a bitter taste and an odd smell. The City’s investigation is underway.
    On the City’s Facebook page, a resident makes a tongue-in-cheek post stating, “My water tastes like it came out of the swamp down the road!” Shelly is a summer student and “deputized” social media communicator for the City.
    Shelly readies herself to respond.
  • 14. Policy Model for Managing Risk
    License “deputized communicators” on special terms
    Establish clear objectives
    Create a workable review process
    Measure time, effort and outcome
    Pay wages for work, reward performance
  • 15. Policy Model for Managing Risk
    Green light, yellow light, red light
    A model for your deputized communicators
    An attempt to balance control and creativity
  • 16. Employees as Targets
    Josie is a senior municipal administrator who has gone though some tough personal circumstances. One fall evening she’s caught driving 140km down a side road under the influence and is charged.*
    *Scenario entirely fictitious
  • 17. Employees as Targets
    The story runs in the news, and is re-posted by a local citizens’ advocate. Over the next week about 50 others (all anonymous) post comments. The dialog degrades quickly to one about the employee’s sexual reputation. Defamatory comments are made about her and other municipal employees.
    What’s a CAO to do?
  • 18. Employees as Targets
    Duty to provide a safe and harassment free workplace
    Under human rights legislation
    In some provinces under health and safety legislation
    There must be a nexus to the workplace
    If there is, there is a duty to take reasonable steps to provide a safe and harassment free workplace
  • 19. Employees as Targets
    A defamation claim is about damage to reputation
    It is a very personal claim, about vindication of reputation
    It is hard on plaintiffs because it invites a trial of their reputation
    Injunctive relief is generally not available
  • 20. Employees as Targets
    A defamation claim is about damage to reputation
    An employer may have duty to support an employee who has been defamed (fact-specific)
    But it is highly questionable that supporting a defamation lawsuit is part of that duty
  • 21. Employees as Targets
    Consider the expression, don’t react to it
    Show support for the employee
    If you take steps to facilitate “takedown,” make clear that you’re taking one step at a time
    Frame your engagement properly from the outset
    Tell the employee to get independent legal advice (Defamation claims are time-sensitive!)
  • 22. To contact me
    Dan Michaluk
    daniel-michaluk@hicksmorley.com(416) 864-7253 http://ca.linkedin.com/in/danmichaluk
    twitter: @danmichaluk
  • 23. Managing Social Media Risks and More
    2011 MFOA Annual Conference
    September 22, 2011
    Dan Michaluk