Social media platforms moderate user-posted content to protect us from offensive, disturbing and sometimes criminal content. This process, however, is not always automatic. It often relies upon the efforts of individual workers to act as gatekeepers, keeping undesirable content at bay.
Facebook engages approximately 15,000 workers to moderate the content being uploaded onto its platform. Many of these workers are not employed by Facebook. Rather, the company outsources this critical function to low-wage contractors engaged through temporary-help agencies.
A report by The Verge in late February 2019 has shed some light on the conditions in which Facebook moderators work, and the material impact their work can have. The report suggests that contractors: work in call centre-like conditions; get only short and rigorously-enforced breaks; are subject to oppressive work oversight; are denied prayer breaks; live in fear of being fired or former colleagues returning to seek vengeance; and struggle psychologically to deal with the graphic content to which they are repeatedly exposed.
Some of the workers that were interviewed have developed PTSD-like symptoms, crying on the job, and smoking marijuana on breaks as a way to cope. Others have come to believe conspiracy theories they are supposed to be flagging for removal. One former worker stated that he no longer believed 9/11 to be a terrorist attack, while at least one current worker doubts the holocaust and another believes the earth to be flat.
Workers are also required to sign Non-Disclosure Agreements and are discouraged from discussing the emotional toll the job takes on their lives, leading to increased feelings of isolation and anxiety.
Facebook has responded to the report and reiterated a commitment to work with its partners “to demand a high level of support for their employees; that’s our responsibility and we take it seriously.” Given the general lack of political and economic power of content moderators, however, this story may simply fade, leaving questions unanswered.
Lessons for Ontario Employers and Employees
Thankfully, many workplaces are unlike the one described above. That said, the plight of Facebook’s contractors provides some important lessons for Ontario employers and employees alike. It raises questions around the use of temporary help agencies, employee mental health and accommodation, intoxication in the workplace; worker retention, and religious accommodation.
Many employers and employees will face one or more of these issues in the course of a working relationship. As such, being equipped to properly navigate these issues is of critical importance, which can impact staff happiness and workplace productivity:
a) Employee Mental Health, Accommodation and Constructive Dismissal
Ontario employers are required to provide a workplace that is free from harassment and violence, and to reasonably accommodate employee disabilities (a broadly defined term that can include everything from clinical depression to a broken leg).
Fortunately, the social stigma associated with admitting, and acknowledging, mental health concerns is slowly being eroded. That said, there is still a tendency for people with mental health disabilities to be subject to stereotyping and face isolation and/or marginalization in the workplace. Best practice for Ontario employers is to foster a positive and inclusive work environment, while respecting and ensuring the privacy of those employees that elect to report mental health concerns. Employers can look to build a healthy work culture, implement employee assistance programs, provide disability benefits and encourage staff to seek help, when necessary.
In circumstances where an employer’s workplace causes, or contributes to, the deterioration of an employee’s mental health (whether as anxiety or depression), beyond the obvious impact on employee moral and productivity, serious liability can accrue. Employers have statutory obligations to provide a harassment-free workplace, take every reasonable precaution for the protection of workers and avoid discrimination on the basis of a disability. In addition, should a workplace cause an employee to become ill, he/she may have a legitimate claim to assert constructive dismissal on the basis of a toxic work environment, and receive severance.
For more information on constructive dismissal, see our previous article on toxic work environments.
b) Intoxication in the Workplace
Employee intoxication in the workplace can be a significant safety and productivity concern. In addition, it has the potential to raise questions around addiction and whether an individual requires accommodation at work.
Generally speaking, employers have a right to demand that staff work soberly, safely and productively. In fact, many workplaces institute (and clearly communicate) policies to prohibit the use of alcohol or drugs at the workplace and/or the performance of work after consumption of an intoxicant.
Employers may wish to consider implementing policies and providing regular staff training clearly setting expectations; and consistently discipline staff for the recreational use of intoxicants at the workplace.
That said, there may be circumstances where the use of intoxicants requires a different response. For example, if an employee has been prescribed medical marijuana for an illness, he/she must be reasonably accommodated (balancing safety alongside the individual’s ability to perform meaningful work). In addition, if an employer is reasonably aware that an employee is dealing with an addiction, they will want to provide accommodation, rather than rush to issue discipline.
For a deeper discussion of employee use of intoxicants in the workplace, see our previous article.
c) Religious Accommodation
The Verge report noted that two Muslim employees were prohibited from performing one of their five daily prayers on a designated “wellness break.” It would be unlawful for an Ontario employer to enact a prohibition of this kind.
The Ontario Human Rights Code requires employers to provide reasonable accommodation of a practice or observance of a sincerely-held religious belief to the point of undue hardship (which could be due to cost, health or safety reasons). As such, unless an employer could demonstrate that allowing an employee to pray for five times daily would meet this threshold, it would be required to explore, and implement, a reasonable accommodation.
It should be noted that a reasonable accommodation is not the same as the employee’s preferred accommodation, and in a unionized workplace, the employee’s union should be party to finding a resolution.
Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or firstname.lastname@example.org