For any modern, public-facing organization, a social media presence has come to feel less like a “nice feature” and more like an absolute “must-have” to stay competitive and relevant. In particular, today’s customers demand and, indeed, expect a social media platform where they can receive succinct, immediate, one-on-one support without having to interact with a customer service representative over the phone or face-to-face.

While there are clear advantages to having social media platforms with customer service functions, there are also real challenges — the latest of which comes out of a recent Ontario labour arbitration decision.

In Re: Toronto Transit Commission and ATU, Local 113 (Use of Social Media), the arbitrator grappled with the role that employers’ play in managing social media content and its potential impact on employees.

In that case, the Amalgamated Transit Union, Local 113 (“the Union”), filed a grievance against the Toronto Transit Commission (“TTC”) alleging that its members had been exposed to harassing, offensive and abusive comments from the public through the employer’s customer service-related Twitter account @TTChelps. The Union also raised concerns about comments that impacted employee privacy and adherence to the formal complaint system as set out in the collective agreement.

Upon reviewing the evidence, the arbitrator concluded that while the TTC’s social media representatives had taken some steps to discourage harassing, offensive and abusive language, the employer had “failed to take all reasonable and practical measures” to protect its employees from harassment.

This case is significant because, in reaching this conclusion, the arbitrator had to determine whether customer content posted on the TTC’s social media platform fell within the scope of the employer’s responsibility.

It has already been established through the case law that an employee’s right to be free from discrimination “with respect to employment” as articulated in section 5(1) of the Ontario Human Rights Code includes situations where the discriminator/harasser is not another employee but a customer or guest of the employer.

In this decision, the arbitrator further expands this principle to include interactions with customers and guests of the employer on social media platforms. This interpretation was bolstered by the TTC’s own internal policy’s definition of harassment which includes “offensive behaviour arising from the use of electronic communications, such as the internet, e-mail, etc…”

This conclusion may be troubling for employers with social media accounts as it seems to assign responsibility for content posted on platforms over which they feel they have little control. That being said, there is some good news…

While highlighting the problems with customer service-related social media accounts, the arbitrator also acknowledged the advantages and stopped-short of ordering @TTChelps to be shut down (as the Union had requested).

Instead, he provided some suggestions of measures that could be taken to mitigate concerns with harassing, offensive and abusive content on the customer service Twitter account and to help preserve the privacy and dignity of the employees:

1. Take a stronger stance against abusive tweets

When offensive tweets are posted, respond with a strongly-worded message indicating that the type of language used will not be condoned. Ask the user to delete the offending tweet immediately. If they do not delete the message, consider blocking the user.

2. Move the conversation offline

Instead of engaging in a back-and-forth exchange with a user who has posted a negative comment about an employee, the social media representative should immediately refer the user to the offline public complaint mechanism. This will ensure that any offensive or sensitive conversations about the employee take place in a private setting.

3. Keep responses neutral and avoid unnecessary editorializing

When responding to tweets that are critical of employees, try to avoid comments or phrases that would validate the service user’s account of the events or that could be interpreted as value judgements. Employees should have the opportunity to provide their own version of events through an investigation before the employer takes a position on their conduct.

4. Consider templated responses

To ensure that responses are kept neutral and are accurate, it may be worthwhile for the employer to work with the employees or union to come up with a set of standard Twitter responses to common issues, critical or complaint-type posts.

5. Create a social media policy

In order to ensure that there are guidelines and standards for responding to the public that align with legislative and collective agreement obligations, employers with social media presences should create their own social media policy. Among other things, these policies should condemn harassing and offensive content and emphasize an employee’s right to privacy and dignity.

Megan Forward

About the Author: Toronto Employment Lawyer Megan Forward develops and delivers training sessions for her clients and conducts investigations and workplace assessments to help employers resolve issues related to harassment, poisoned workplace environments and bullying.