High-Risk Terminations and Employee Use of Social Media - HRPA · • adversely affects employer...

Risky Business: High-Risk Terminations and

Employee Use of Social Media

September 16, 2015

presented by Lauren Bernardi

high-risk

terminations

Bernardi Human Resource Law LLP | hrlawyers.ca

• identifying high risk terminations

• issues to consider

• strategies for responding

3

learning outcomes

the older worker

• not performing as well as they used to

• want “fresh blood”

• want to reduce payroll costs

5

the older worker

• fully explore duty to accommodate

• must show not related to age in any way

• notice period to reflect challenges finding

a new job

6

strategies

pregnant employee/on leave

• keep proper documentation at all times

• communicate expectations regularly

• being pregnant or on leave is not a

guarantee of continued employment

• consider timing

8

strategies

disabled employee

• early return to work

• BUT do not act in haste: allow employee

sufficient time to provide medical

evidence

• be careful about claiming job abandoned

10

strategies

• notice and severance

• years of service during disability leave

considered active service

• confirm LTD benefits can continue

• credit for disability benefits

11

strategies

terminating a harassment complainant

• ensure not protecting a “Ghomeshi”

• consider impact on the rest of the team

• use objective considerations

13

strategies

members of a protected class

• stereotyping = attributing same

characteristics to all members of a group

• example – certain ethnic groups:

• excel at math, music, sports

• are lazy, aggressive, misogynistic

• adverse impact discrimination

15

members of a protected class

• violation if even one part of employer’s

decision discriminatory

• risk of increased damages

16

members of a protected class

• train managers on diversity

• use objective criteria for performance

• discipline consistently based on infraction

• ask whether a proposed action can be

defended

• avoid assuming they will play the “card”

17

strategies

• use employment agreements

• implement policies and have them signed

every year

• document, document, document

• provide a reasonable or even generous

severance package

• provide career transition services

18

strategies for all high risk terminations

social media and

the workplace

Bernardi Human Resource Law LLP | hrlawyers.ca

social media explained

• cost-effective

• creative

• marketing tool

22

benefits to social media

• loss of productivity

• vicarious liability for employee conduct

• risk of damage to employer’s reputation

• release of confidential information

• harassment and defamation

23

problems with social media use

“A click of a button is all it takes to ruin

somebody’s life”

Ed Vasquez, legal counsel

to Audrie Pott’s family

24

problems with social media use

hiring

Bernardi Human Resource Law LLP | hrlawyers.ca

• 77% of employers conduct online

background checks

• Google searches

• LinkedIn

• Facebook (with or without passwords)

• Blog postings

26

background checks

• potential human rights violations

• information not entitled to have

• e.g. sexual orientation, religious affiliations,

marital status

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risk

• OHRC

• employers can’t request passwords

• may result in information being disclosed

• similar to restrictions on application forms

and interviews

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risk

• Privacy Commissioners of Alberta, Québec,

and Canada (federal) discourage use of

social media as part of the background

check

• written consent of candidate is required

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risk

• adverse impact on certain groups

depending on criteria applied

• cultural differences in use of social media

• bias in how we view people’s social media

images

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risk

• develop procedures and apply

consistently

• decision maker should not conduct social

media search

• make offer conditional on background

check, including social media check

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strategies

• retain information found online for

accuracy

• validate any negative information found

before making a decision

• be careful about hiring only those who

have an online presence

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strategies

while employed

Bernardi Human Resource Law LLP | hrlawyers.ca

• 89.6% check corporate email

• 91.7% check personal email

• 70% use corporate email address for

personal emails

• 68% check personal devices at work to

stay in touch with friends

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during working hours

• 25% of time spent on social media at work

is non-work related

• 60-80% of time on the Internet at work, has

nothing to do with work

35

during working hours

• our attention span has gone from 12

seconds in 2000 to 8 seconds today

• people in high stress jobs tend to distract

themselves with social media more often

• we procrastinate with social media

36

during working hours

legal test:

• pattern of not performing work

• incompatible with duties; and

• prejudicial to employer’s business

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habitual neglect of duty

• classifying threats

• online vs. in person

• expectation of privacy for Facebook

profile from employers

• “friending” managers may negate privacy

expectation

38

implications

• legal test:

• conduct that causes employer to lose trust

in employee

39

revelation of character

• legal test:

• detrimentally affects employer’s reputation

• causes employee to not fulfill obligations

• causes other employees to refuse to work

with individual

• adversely affects employer from managing

40

off-duty conduct

• Amanda Todd posting

• Toronto firefighter tweets

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off-duty conduct

• vicarious liability for employees’

defamatory comments

• direct liability as publisher of the statement

42

liability for employee conduct

• policy

• no expectation of privacy

• no personal use at work

• blocking access to certain sites

• audits

• training

43

strategies

during and post

termination

Bernardi Human Resource Law LLP | hrlawyers.ca

• organizations own

• their information and can protect it

• the rights to their work product

46

confidentiality

• Facebook posts during and after mediation:

• “…is feeding them a bunch of bull shit. I

don’t care but I’m not leaving without my

money…lol”

• “…I didn’t get what I wanted but I still walked

away with some…”

• “…something is better than nothing…”

47

Tremblay and Lalonde

• settled human rights complaint

• agreed to confidentiality

• Lalonde posted details of settlement on

Facebook

• employer refused to pay settlement

48

Tremblay and Lalonde

• Tribunal determined:

• employee breached confidentiality

agreement

• settlement amount reduced by $1,000

49

Tremblay and Lalonde

• who owns them

• non-solicitation agreements

• announcement of new job

• maintaining contacts

• release of confidential information

50

LinkedIn pages

• employment agreement and policies

• confirm ownership

• ask former employees to de-link contacts

• require notification to be turned off when

announcing new job

• require former employees to remove

employer information

51

strategies

• post termination:

• check LinkedIn profile re: mitigation efforts

• Google search to determine if making

disparaging comments

52

strategies

social media

policy

Bernardi Human Resource Law LLP | hrlawyers.ca

• set out organizational standards

• clarify workplace conduct rules

• explain risks of social media

• supports discipline/termination

54

purpose

• warning of risks

• confidentiality obligations

• information that organization’s computers

are always monitored

• no expectation of privacy

55

policy should include

• explanation of protocols for work usage

• avenues to address concerns

• a caution that undetected behavior does

not mean condoned

• consequences of violating policy

56

policy should include

• prohibit

• use of organization’s logos, slogans,

intellectual property

• violation of employer’s policies e.g., respect

and violence

57

policy should include

• disparaging remarks towards organization

and co-workers prohibited

• may not discuss the workplace on social

media

• may not identify employer without

permission

58

policy should include

• EDUCATE employees on social media

• apply specific non-solicitation and

confidentiality conditions on termination

• discuss LinkedIn profile changes at time of

termination

59

strategies

questions