Employer Obligated to Protect Employees from Cyberspace Harassment

Written by on March 27, 2017 in Blog, Focus on Canadian Cases
Social Media Use Discriminatory -- woman hand computer computing typing digital tablet silhouette

Cyberspace is the not so new frontier that has brought with it many wonderful things and some not so good things – such as online harassment and bullying. What happens when cyberspace harassment enters the workplace? Do employers have an obligation to protect their employees from online harassment? The recent labour arbitration decision in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (Use of Social Media Grievance) suggests that they do.

It is well-established that employers must protect employees from harassment at the hands of their managers or other employees. As social media continues to permeate every aspect of our lives, including our jobs, employers may also have an obligation to shield their employees from harassment by third parties in “cyberspace”, on the basis that the social media sites operated by an employer are an extension of the workplace.

Facts

In this case, a grievance was brought against the TTC with respect to abusive tweets made to the TTC’s public twitter account, @TTCHelps. Irate TTC customers were using harassing, derogatory, abusive, racist, homophobic, sexist, and threatening language in making their complaints to the TTC about its workers, occasionally posting identifying information about specific TTC employees, such as their badge or ID. The union submitted that the TTC had contributed to a hostile work environment by creating a forum for the abusive tweets, and by allowing and even condoning them. The TTC took the position that the twitter account served a legitimate business purpose, calling an expert witness to provide evidence about the importance of a forum like twitter for public service organizations. The TTC also argued that it could not control the public and that the tweets would likely occur whether or not it had a twitter account.

The Arbitrator found the TTC liable for failing to protect its employees from online harassment. By ignoring the offensive language in tweets to its twitter account, or by only briefly addressing the remarks and providing a link to its complaints service, the Arbitrator determined that the TTC was not doing enough to deter the public from sending abusive tweets. He agreed with the union that the TTC had failed to take all reasonable and practical measures to provide its employees with a workplace free from harassment as required by the Ontario Occupational Health and Safety Act and the Ontario Human Rights Code.

Contrary to the union’s request, however, the Arbitrator did not order that the @TTChelps account be deleted. Instead he ordered the TTC to implement changes to its social media policies, including deleting offensive tweets, blocking abusive customers from the account, developing templated responses that are acceptable to the union, and seeking assistance from Twitter itself in appropriate cases.

Lessons for Employers

Although this case arose in the context of unionized employees, it may have future implications for all employers who make use of social media in running their businesses. In light of this decision and the pervasiveness of social media in the workplace, all employers should review their social media policies and practices to determine whether their social media accounts create a risk for employer liability for harassment towards their employees, even from third parties, and revamp these policies and practices prior to such issues arising. Employers may be expected to take all reasonable steps to protect their employees and failure to do so may result in legal liability with a large price tag. Consulting with Employment Law counsel prior to an issue arising is recommended.

Lessons for Employees

Similarly, employees who are experiencing cyber harassment in the workplace, whether from their co-workers or third parties through work related social media, should immediately inform their employer and seek assistance in addressing the situation. Employees should be familiar with the company social media policies in place to ensure they are acting in compliance of these policies and procedures. If an employer is failing and or refusing to adequately protect employees from cyber harassment, those employees may be entitled to a range of damages. In these situations, it is recommended that employees consult with experienced Employment Lawyers.

Minken Employment Lawyers is your Canadian source for expert Employment Law advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.

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