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  • Management lawyer from Hicks Morley Very open minded about social media Also know risks Deal with them on a near daily basis now Here’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 you Seems kind of yester-year How many of you think that Bob and Sue have engaged in employment-related misconduct? Purely private No legitimate reason for employer to take issue with this Healthy in a sense
  • This is the sad reality today Great sociological questions about why this happens But it happens How 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 interest That’s the test about whether it is public or not Is it likely to negatively affect an employer interest We look for “nexus” and the nexus does not have to be physical Too simplistic, not the law
  • Here are the most common interests that are affected In 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 one Issue number two is about corporate use of social media Here’s a scenario that illustrates a danger of jumping on the corporate communications social media bandwagon without thinking through some important employment-related issues How many of you are concerned that Tim has just assigned work?
  • I am Here are the two legal risks flowing from that statement… And I think they are relatively self-explanatory to most of you So as HR or legal, reach out to your communications pros Work with them, but make sure they understand these risks
  • I am Here are the two legal risks flowing from that statement… And I think they are relatively self-explanatory to most of you So as HR or legal, reach out to your communications pros Work with them, but make sure they understand these risks
  • Topic number two Internet publication issue We might be living with this one for a while eh? Let’s start with a scenario
  • Internet troll scenario How 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 clients His/her reputation is different than the company’s reputation Why is it that you want to make her/his problem yours? You may have a duty to provide a safe and harassment free workplace But that doesn’t mean you must engage with an internet troll on their behalf Engagement means true engagement, and comes with many costs
  • If there is a nexus to the workplace, you may have a positive duty Example -60 year police officer -Police officer bulletin board -Disparage officer… bag of bones… useless… -Officer comes to you Nexus? 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 employees Start 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) abbreviated Not a claim for corporations Not even a claim for most people
  • So… Very questionable that a duty to employee will require engagement Must 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.)

Mfoa social media presentation 2 Mfoa social media presentation 2 Presentation Transcript

  • Managing Social Media Risks and More 2011 MFOA Annual Conference September 22, 2011 Dan Michaluk
  • Outline
    • Harm from off-duty expression
    • So you want to blog eh?
    • Policy model for managing social media risks
    • Current employees as targets
  • 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.
  • 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.
  • 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
  • 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
  • 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.”
  • So you want to blog eh?
    • Risks
      • 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
  • 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
  • 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
  • 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)
  • 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
  • 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 .
  • 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
  • Policy Model for Managing Risk
    • Green light, yellow light, red light
      • A model for your deputized communicators
      • An attempt to balance control and creativity
  • 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
  • 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?
  • 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
  • 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
  • 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
  • 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!)
  • To contact me
    • Dan Michaluk
    • [email_address] (416) 864-7253 http://ca.linkedin.com/in/danmichaluk
    • twitter: @danmichaluk
  • Managing Social Media Risks and More 2011 MFOA Annual Conference September 22, 2011 Dan Michaluk