AGF InvestmentsDecember 6, 2013

Toronto

Presented by

Stuart E. Rudner

Managing Employees in the Social Media Era

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Why Should We Be Concerned About Misuse?

• Lost productivity

• Corporate liability– Harassment

• Damaged reputation– Lost customers– Lost shareholders– Share devaluation

• Ownership of Social Media Accounts

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Why Should We Be Concerned About Misuse?(cont’d)

• Not just “desktop issue”– Laptops– iPads– Smartphones

• 24/7

• On duty

• Off duty

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“Cyberslacking”

• Staff with FaceBook open all day

• Hours & hours online

• Talking and texting on personal cell phone while at work

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Reputation

• Teenage victim of bullying commits suicide

• Facebook memorial

• Individual posts: “Thank God this b---- is dead”

• He and his employer are readily identifiable

• Just cause for dismissal?

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FaceBook post:

“have to work this weekend because our new

products failed initial tests”

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HarassmentPost on co-worker’s wall

“I loved the skirt you were wearing today. You have the sexiest legs in the office!”

“I hope you have another short skirt you can wear tomorrow – maybe no hose this time?”

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Recent Incidents

OHL Ref: “Soo Saint Marie, two words, Slim Pickens. #noteeth #hicktown #allfaties."

Mr. Lube employee: “Any dealers in Vaughan wanna make a 20sac chop? Come to Keele/Langstaff Mr. Lube, need a spliff or two to help me last this open to close.”

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Online Recommendations

• Employee dismissed for cause based on poor performance

• Manager gave him recommendation on LinkedIn the week before dismissal

• Now suing for wrongful dismissal

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What to Do?

Protecting the Organization with Policies

1. Produce a written policy and include it as part of the employment contract

2. Communicate / publicize the policy to everyone

3. Monitor use of technology and workplace behaviour

4. Discipline violators – avoid condonation

5. Continuously update policy as technology evolves

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Workplace Acceptable Use Policies

Policy Implementation and Enforceability Considerations

• Effective, enforceable rules to manage risk

• Strike the right balance between protecting the organization and preserving individual privacy

• Limit employees’ expectation of privacy in using employer’s equipment and networks

• Clear language

• Different rules for different roles

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Setting clear Rules

• 24 pictures of “sunshine girls” – “ Although the nature of the pictures are

offensive to a segment of society and may be offensive to some fellow employees… without attempting to attach a label to these pictures it [is] sufficient to say that for the purpose of this arbitration they are not as labeled by the Employer…. “pornographic, sexually explicit pictures”…”

Employment Agreements

Use to set control social media usage

Also to establish ownership of accounts

Do it properly– Before there’s already an

agreement

Maintain control overaccounts

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The Law

• No need for new law – legal principles exist to deal with these scenarios

• New application of existing legal principles– Personal use is no different than previous

example of “slacking”– Email/FaceBook harassment is same as earlier

forms of harassment

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Privacy issues

General recognition of employer right to monitor usage

Corporate email or otherwise Searching company-owned equipment Cole and other decisions Have a policy Include statement in contract: don’t put it

on our system if you don’t want us to see it

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Dismissals 2 types: With cause or

without cause

If with cause, no further obligation to employee

Otherwise, need to assess employee’s entitlements to

notice/pay in lieu/severance

No “near cause”

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Without Just Cause

Notice of Dismissal or Pay in Lieu

Two sources of entitlement– Employment Standards Act /

Canada Labour Code– Common Law

Can contract out of common law

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Dismissals for Just Cause

Capital Punishment of Employment Law Employer must prove:

1. that the alleged misconduct took place, and

2. that the nature or degree of misconduct warranted dismissal, bearing in mind all relevant circumstances

Proportionality is guiding principle – “punishment must fit the crime”

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The Contextual Approach

Employer must consider all circumstances, not just alleged misconduct– Length of service– Disciplinary history– Nature of position

No absolute rules Same set of facts can yield different

results

Can you Discipline for Off-Duty Conduct?

Generally, what you do on your time is your business

Unless– The conduct renders the employee unable to

perform his duties satisfactorily.– The conduct interferes with the efficient

management of the operation or workforce.– The conduct leads to a refusal or reluctance of other

employees to work with him.– The conduct harms the general reputation of the

Employer, its product or its employees.

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The Importance of the Investigation

Investigate first Ensure fairness, objectivity,

thoroughness Give opportunity to respond Often, employee response is critical

factor in determining appropriate discipline

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Social Media Post-dismissal

• Duty to mitigate – have to look for new work– If find new work, former employer’s obligations

reduced

• Learn when individual has mitigated

• Use social media to monitor mitigation– LinkedIn

• Log and share job opportunities

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Stuart E. Rudner

srudner@rudnermacdonald.com

647.255.3100www.rudnermacdonald.com

Twitter: @CanadianHRLawLinkedIn: Connect with me, join the Canadian HR Law Group and visit the

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