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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
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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
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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
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strategies
• notice and severance
• years of service during disability leave
considered active service
• confirm LTD benefits can continue
• credit for disability benefits
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strategies
terminating a harassment complainant
• ensure not protecting a “Ghomeshi”
• consider impact on the rest of the team
• use objective considerations
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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
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members of a protected class
• violation if even one part of employer’s
decision discriminatory
• risk of increased damages
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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”
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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
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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
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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
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problems with social media use
hiring
Bernardi Human Resource Law LLP | hrlawyers.ca
• 77% of employers conduct online
background checks
• Google searches
• Facebook (with or without passwords)
• Blog postings
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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
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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
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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
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implications
• legal test:
• conduct that causes employer to lose trust
in employee
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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
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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
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liability for employee conduct
• policy
• no expectation of privacy
• no personal use at work
• blocking access to certain sites
• audits
• training
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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…”
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Tremblay and Lalonde
• settled human rights complaint
• agreed to confidentiality
• Lalonde posted details of settlement on
• employer refused to pay settlement
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Tremblay and Lalonde
• Tribunal determined:
• employee breached confidentiality
agreement
• settlement amount reduced by $1,000
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Tremblay and Lalonde
• who owns them
• non-solicitation agreements
• announcement of new job
• maintaining contacts
• release of confidential information
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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
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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
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purpose
• warning of risks
• confidentiality obligations
• information that organization’s computers
are always monitored
• no expectation of privacy
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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
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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
