Employers are Consumers: Learn how to Fight Back and Office Politics: the game everyone plays

By Franke James, author, Dear Office-Politics

When Ellen Roseman, author and consumer-advocate columnist for The Toronto Star, invited me to contribute to her new book, Fight Back, I was delighted. As you’ll read in my excerpted article below, Ellen was an instrumental pair of “eyes” in helping me fight back — and win!  FIGHT BACK 

I WAS FIGHTING A COMPANY over the faulty installation of a gas furnace and ductwork, which had caused major structural damage to our home. I wanted them to pay for repairs. The company had deep pockets and no fear of going to court. Its lawyer said in a surly email, “Go ahead. Sue us.”

Going to court could have amounted to financial suicide for our family, or at the very least, hardship. There was no way I wanted to fight this battle in court, or even in an arbitration hearing.

I wanted to fight it where the odds were more in my favour: the court of public opinion. And for most people that’s a good strategy. It’s a lot cheaper than hiring lawyers but it does depend on having good communication skills.

In my experience most companies will do the right thing – but only under threat of having their behavior (which often amounts to bullying) exposed to the world. Everyone – from private enterprises, to public companies, to local and federal governments, is sensitive to public opinion.

Excerpted from Fight Back: 81 Ways to Save Money and Protect Yourselffrom Corporate Trickery. Copyright (c) 2012 by Ellen Roseman. Excerpted with permission of the publisher John Wiley & Sons Canada, Ltd.

About Franke James:


Franke James, MFA is the author/inventor of Dear Office-Politics: the game everyone plays and the Founder of Office-Politics.com. Franke is also the author/artist of Bothered by My Green Conscience. Franke brings over 20 years of real-world business experience to her role as an adviser on OfficePolitics.com. See her 2012 quiz for CNN’s Global Office show. Franke has been quoted and featured in print, radio and TV on the topic of office-politics by the New York Times, Chatelaine Magazine, Inc. Magazine,  the Globe and Mail, Job Postings Magazine, CBC Radio, CTV News and other media.  (Follow her on Twitter @officepolitics and @frankejames) 



About Ellen Roseman and ‘Fight Back’:

Ellen Roseman is a journalist who sticks up for ordinary Canadians. As a long-time advocate for consumer rights, she’s become a brand name for activism and a champion at helping consumers fight back against injustices. Her columns appear three times a week in the Toronto Star and her popular blog, EllenRoseman.com, has been online since 2007. She’s the author of seven books, including Money 101: Every Canadian’s Guide to Personal Finance and Money 201: More Personal Finance Advice for Every Canadian. She teaches investing and personal finance at the University of Toronto’s continuing studies department and Ryerson University’s Chang School, and is on the board of FAIR (Canadian Foundation for Advancement of Investor Rights) and Community Legal Education Ontario (CLEO).

In Fight Back, Ellen Roseman distills the financial advice she gives in her columns and blogs into 81 quick tips that all Canadians can use to help them spend sensibly, save money, and avoid costly consumer traps. This book of “personal finance greatest hits” is filled with illustrative examples and cautionary advice from Roseman and stories from her faithful readers. Filled with a wealth of information, the book includes the low-down on dealing with banks and car dealers, cutting costs of communication services, improving your credit, buying and renovating a home, fighting online fraud, ensuring you have the right insurance, and more.

Ellen Roseman has assisted HRNC to fight back!

DISCIPLINE FOR INAPPROPRIATE OFF-DUTY USE OF SOCIAL MEDIA

By Michelle Alton and Thomas Agnew, Hicks Morley LLP
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The utilization of social media has grown exponentially in the past few years. In light of this, employers have more reason than ever to consider how to effectively manage employees utilizing social media sites with respect to limiting potentially negative effects in the workplace.
In the context of an employment relationship, social media issues can arise in one of two ways: first, issues may arise if and when employees utilize social media sites while they are at work; and second, issues can arise when employees utilize social media sites inappropriately outside the workplace. In general, employers can only regulate off-duty conduct when it can be shown that the conduct will have an impact on the employer’s interests, and/or the workplace in general.

In this context, one of the most common examples of inappropriate employee use of social media sites is when employees post content that is critical of their employer and/or other employees working for the employer.

Recently, Arbitrator Chauvin considered what discipline was appropriate in a case where three employees had posted inappropriate comments on the social media site, Facebook. In his decision, he provided a detailed overview of the general arbitral principles relating to employee discipline or discharge for inappropriate use of social media sites.

Background
All three of the employees involved were employed by Bell Technical Solutions (“BTS”) as Technicians. Two of the employees, referred to as Mr. A and Mr. S in the decision, were regular part-time employees. The third employee, Mr. W, was a temporary part-time employee. At the time that the discipline was imposed, Mr. A had worked for the employer for 9.5 years and was 41 years old. Mr. S had worked for the employer for 7.5 years and was also 41 years old, whereas Mr. W had only worked for the employer for 18 months and was 20 years old.
Mr. A and Mr. W were terminated for the inappropriate comments that they had posted on Facebook regarding BTS and/or their supervisor, Mr. B. Mr. S was suspended for five days for making inappropriate comments about Mr. B on Facebook. All three of the employees were warned to stop posting these inappropriate comments on Facebook, but failed to do so.
During the initial discipline meetings, Mr. W and Mr. A were very unapologetic and defiant. As a result, BTS terminated the employment of both individuals. Mr. S was more reasonable in the discipline meeting, and as a result, BTS chose to suspend him for five days.

Significant Discipline Warranted
Arbitrator Chauvin upheld the five day suspension of Mr. S and the termination of Mr. W. He substituted the termination of Mr. S with a one-year disciplinary suspension without pay.
In making his decision, Arbitrator Chauvin noted the following:

•  It is well-established that inappropriate Facebook postings can result in discipline or discharge, depending on the severity of the postings. The nature and frequency of the comments must be carefully considered to determined how insolent, insulting, insubordinate and/or damaging they were to the individual(s) or the company.

• When determining the appropriate disciplinary measure, it is important to consider the following factors: whether the individual was uncooperative, defiant, and/or dishonest during the employer’s investigation and whether the individual admitted to engaging in misconduct, accepted responsibility, showed remorse and/or offered a genuine apology.

• Provocation, which could include inappropriate behaviour by a manager, can be considered as a significant mitigating factor.

On the basis of these factors, Arbitrator Chauvin found that the postings of Mr. S were less offensive and frequent than those of Mr. A and Mr. W. The postings were also not related to BTS, but to Mr. B, who the Arbitrator concluded had a temper and could sometimes become upset or yell at work. Nonetheless, the postings were serious, Mr. S was insolent to his supervisor and he failed to stop posting when he was first asked to do so. Therefore, the five day suspension was upheld.

In contrast, Arbitrator Chauvin concluded that Mr. W’s postings were very disparaging of BTS and Mr. B, and included profanities and inappropriate pictures. The postings were made over a prolonged period of time, and were premeditated and deliberate. Mr. W refused to stop making the postings despite being asked to do so on two occasions. The postings were very public, Mr. W lacked remorse, did not acknowledge any wrongdoing and did not provide a sincere apology. The Arbitrator found that there was no provocation in the situation and in light of Mr. W’s short-service and temporary, part-time position, the termination was upheld.

Finally, Arbitrator Chauvin concluded that Mr. A’s misconduct was also very serious and warranted significant discipline. However, he noted that unlike Mr. W, Mr. A did not make any postings which were derogatory to or ridiculed BTS, provocation was a factor as Mr. B had acted in appropriately with Mr. A, and Mr. A’s length of service was much longer than Mr. W’s. Therefore, Arbitrator Chauvin concluded that it was appropriate to substitute Mr. A’s termination with a one-year disciplinary suspension without pay.

Accordingly, this decision confirms that depending on the circumstances, significant discipline can be imposed when social media is utilized in an inappropriate manner outside of the workplace. When assessing the appropriate disciplinary penalty, employers must consider all of the factors articulated above, especially when more than one employee is involved. All allegations should be put to each employee, and notes should be made about the employee’s behaviour during the investigation. Any possible provocation in the circumstances should also be assessed, as this can be a mitigating factor.

Best Practices
In order to effectively manage employee social media use as it may impact on the workplace, it is critical that employers develop and consistently enforce policies and procedures regarding social media.
Employers should ensure that they have social media policies in place that include:

• A direction regarding whether social media use in the workplace is permitted. It should be clear to employees whether they can access social media sites during working hours.

• A statement that posts on social media sites will not be considered private, even if a posting is made to a limited number of “friends’. Employees should also understand that if they chose to identify themselves as an employee of a particular employer, they must represent themselves and the employer appropriately.

• A rule that prohibits employees from speaking on the employer’s behalf without permission, and a rule that requires employees to use a disclaimer when publishing communications that may be perceived as the employer’s communication.

• Guidelines as to what kind of posts are acceptable and what kind of posts are considered inappropriate. Examples of inappropriate posts include disclosing personal information of clients, posting confidential company information, and/or posting disparaging comments about the employer or other employees.

•  A statement that any violations of the policy may be grounds for discipline, and in appropriate circumstances, may be grounds for termination.

• A provision that employees should also be encouraged to ask questions regarding the policy.

It is important to have a strong social media policy in place, so that employees will not only know what their obligations are, but so that they will understand that inappropriate utilization can lead to significant disciplinary consequences.

Michelle Alton and Tom Agnew are lawyers in Hicks Morley’s Toronto office and they assist municipal clients of all sizes with labour and employment issues. Michelle can be reached at 416.864.7238 and Tom can be reached at 416.864.7227.

Thank you to the OMHRA Echo for allowing republication of this article.

New Ontario Social Media Reference Check Guidelines

Important information reprinted from Lisa Stam.

Published By
Lisa Stam - Baker & McKenzie LLP

Posted on May 7, 2012 by Lisa Stam

New Ontario Social Media Reference Check Guidelines

Last Thursday, the Ontario Office of the Information and Privacy Commissioner released its new guide for online reference checks.  In the face of the recent debates about whether an employer can request personal social media passwords during job interviews, the release of this document is quite timely.
The guideline is entitled, Reference Check:  Is Your Boss Watching?  The New World of Social Media:  Privacy and Your Facebook Profile.  The guideline reviews the various issues around online background checks, and provides a number of suggestions on how a candidate or employee can protect him or herself.
I attended the event last Thursday at which the Privacy Commissioner, Dr. Anne Cavoukian, unveiled the new guideline and discussed the various risks and problems associated with employers asking for social media passwords.  It will be a surprise to no one that she firmly opposes requiring a candidate or employee to provide their personal social media passwords, although her reasoning was based more on privacy principles than legal prohibitions, given the ongoing gap in privacy law for provincially regulated employees in Ontario.
In her speech, Dr. Cavoukian summarized five unintended consequences of requesting and obtaining a candidate or employees' personal social media passwords:

1. Accessing a candidate's personal social media profile may lead to uncontrolled secondary use of personal data, such as data regarding a candidate's friends and family.
2. Once the employer is in the possession of the data, the employer becomes responsible for that data and assumes liability for the privacy issues regarding the data.
3. An employer may lose out on qualified candidates who are deterred from applying for a position because of the employer's practice.
4. Possible loss of reputation of the employer.
5. Costs of legal liability should a claim arise regarding the use of the information gathered during the social media background check.

Most of the consequences are focused on potential risk or reputational damage.  The reality is, given the privacy law gap in Ontario for non-medical employee personal information, any direct legal consequences are more likely to flow from the breach of a workplace policy, collective agreement, or contract (assuming one exists that speaks to the issue of privacy), than any specific law at this point.
I discuss the Ontario privacy law gap in an earlier post here.  Until the landmark Ontario Court of Appeal decision, Jones v Tsige, was released in January, there was no employee recourse, so it will be interesting to see how the new Guidelines will be used by adjudicators as a thought-piece and articulation by the Ontario Privacy Commissioner of what the law should be for Ontario employers.

Tags: Facebook, Privacy, background check, opc

Facebook is a recruiting tool used by employers.

Here is an excerpt from an article by Kashmir Hill for Forbes.  You can find the whole article at this link:
http://www.forbes.com/sites/kashmirhill/2012/03/06/what-employers-are-thinking-when-they-look-at-your-facebook-page/

"While some readers were put off by the idea of being stalked by potential employers, others recognized the utility of tapping into all the information out there about a given candidate.
“If I’m an employer, and it’s legal, and I’m about to make a major investment in someone that I’ll have to work all day with, I’ll use it,” said “gugie.” Puneet Thiara agreed with her: “The costs associated with hiring and training a new employee far outweigh the risk of not doing ALL of your research. You could say it’s similar to me researching a company I am applying for and checking out members of its groups on Facebook to see what kind of people work for the company.”
But other readers want employers to stick to the social networks intended for professional use. “I — and I know many others are with me here — use ‘social networks’ (other than LinkedIn, that is) for just that. Networking SOCIALLY. In my opinion you have no more business examining my Facebook entries than you would crashing a private cocktail party,” wrote a person who spelled “anonymous” in a very eccentric way. “[S]ocial networks should not be used IN LIEU of face-to-face meetings.”
Brettb was of this opinion as well:

[J]udging the character of an individual with such heavy weight on their personal life, which nine times out of ten will never interfere with their professional life, is wrong. The practice of physically sitting down and going through the motions of an interview with a candidate and asking probing intellectual questions while vigorously researching reference data is a much better way to select a qualified candidate. So what if Johnny had a few too many beers one night in Cancun when he was in college and someone took a photo, or if Susie openly supports her local death metal band. Does that make them bad people? No – get to know the candidate if you want to make a judgment of character. See how they handle themselves in a professional atmosphere and if they are personable or rather, someone you feel you can work with.

In my opinion, those who don’t want employers looking them up on Facebook pages are fighting a losing battle.
Christian Miller won the comments section with this remark:

Any candidate worth considering should be smart enough to set their privacy settings in order to hide all content from any potential employer. Anything a competent HR staff can find via google search is fair game.

Good luck, job seekers. And along with polishing your resume, dry-cleaning your interview suit, and researching the companies you’re interviewing with, do pay a visit to your Facebook privacy settings page."

www.hrnc.ca

Balancing Act: Internet and Social Media Use At Work

                      With social media outlets such as Facebook and Google+ being so popular and things like fantasy football leagues becoming a staple for many during the winter months personal computer use and even online shopping and banking are inherently going to creep into your employees minds, especially with the ease of receiving email updates on smartphones and wireless internet available nearly everywhere now. So this brings up the question of how employers should address this issue. Is it something that’s been constantly eating away at productivity, is it merely a minor distraction or is it even an issue at all. As the employer you have to ask yourself is it a problem worth addressing? what will the reaction be? And what is the best case scenario or improvement that could come of banning these distractions all together? In doing some online reading reports have suggested ideas on both sides of the spectrum; employees personal internet use is taking up hours of time each day and others saying that yes internet use is common in the workplace but productivity is almost no lower on account of that. My take is distractions are going to creep into the workplace in most cases, internet use is just one of these. Extended lunch breaks, chatter amongst employees and at times foolish games or pranks invented to add a bit of flavour to a sometimes mundane day are common at work. Taking away personal computer use, the one contact they may have outside of work in an 8-10 hour day could cause some unrest with your employees, especially the younger generations who are seemingly tapped into their network of friends, online social groups and hobbies at all times. My opinion is don’t impose a policy eliminating this practice altogether because internet use for personal interests is going to happen. I would encourage employees to do this on their breaks, lunches and at home as much as possible and suggest if it becomes a problem then some disciplinary or internet limiting policies may find their way into the workplace as a result of low productivity. What are your thought on the topic?