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? 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

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