Social Media and the Workplace: Navigating in a New World

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  • Employment and Labour Law:

    SEMINARS | 2015

  • Social Media and the Workplace:

    Navigating in a new World

    Presented By: David Law

    2

  • A whole new world

    Today, people live a substantial part of their lives through social media and handheld technology

    New generations have never lived without it

    Its a moving target: hardware and software change rapidly

    Technology is affecting behaviour and values

    There is no point in debating whether it is a good or bad development this is the new normal and theres no going back

    We need to integrate social media into our thinking as employers and advisers

    And we need to adopt social media as a business tool in every way: communications, training, marketing, and beyond.

    3

  • Some concerns about social media as a tool

    DO think twice about whether you should encourage employees to use social media for work-related purposes

    social networking vs. social notworking

    DONT be mesmerized by the technology (duties of loyalty and confidentiality are well established)

    But DO worry about the technology (data permanence, ease of dissemination, unfettered access by third parties)

    DO educate employees about their workplace and off-duty obligations to their employer (loyalty, confidentiality) and about

    the perils of social media (defamation, violating securities laws,

    etc.)

    4

  • Social Notworking

    Lost productivity in the $ billions

    Time theft

    More than 1 hour each day (1.8 hours for Gen Y)

    Only 6.8% of employees say they use social media for purely work-related purposes

    5

  • Social Media as a Tool Recruiting/Screening

    Human rights issues

    Knowing things you shouldnt know about the candidate, e.g. age, race, religion, disability, etc.

    o Safest approach: dont search online (or dont review online search results) before making a conditional offer

    Decision-maker shouldnt conduct the online search

    Privacy law issues

    Collecting, using and retaining personal information about candidates (even if its irrelevant and doesnt offend human rights legislation)

    Warn candidates that thorough background searches, including online information, are conducted (in order to at least obtain their

    implied consent)

    6

  • Social Media as a Tool Recruiting/Screening

    Fairness issues

    internet is unreliable

    may be limiting hiring to only those with digital presence

    7

  • Social Media Legal Risks

    Vicarious liability for employees wrongs committed in the course of their duties, even if employer didnt expressly authorize employees conduct

    Defamation

    o Example: trash-talking competitors in industry discussion forums

    Securities law violations (insider trading, tipping)

    o Employee tweeting that s/he is working on a big deal!

    8

  • Social Media Legal Risks

    Admissions against employers interests

    o Social media data, tweets, posts, blogs, etc. may be producible in

    litigation against employer (e.g. product liability, accident, etc.)

    Disclosure of employers (or employers customers) confidential information

    o Example: boasting about working on customers top secret project

    9

  • The Perils of Social Media: Duty of Confidentiality

    Employees have a duty to preserve the confidentiality of their employers non-public and proprietary business-related

    information that would harm their

    employer if disclosed or misused

    Lasts indefinitely

    DO identify in advance the types of information you consider to be

    confidential

    10

  • The Perils of Social Media: Off-Duty Conduct vs. Duty of Loyalty

    Every employee owes to their employer a duty of loyalty

    all pervasive, residual obligation to further the interests of

    the employer which is not capable of exhaustive

    categorization but which can be relied upon by the courts to

    compel faithful service in a myriad of work situations. (G. England et al., Employment Law in Canada)

    11

  • The Perils of Social Media: Off-Duty Conduct vs. Duty of Loyalty

    Employees cannot disparage their employers or engage in conduct that damages their employers business, even when that is done on their personal computers and outside of working hours

    Example: Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union

    Example: Wasaya Airways LP v. Air Line Pilots Assn., International (Wyndels Grievance)

    Critical consideration: real versus potential harm to employer?

    Exception: legitimate whistle-blowing

    Solution: make sure employees have proper channels to raise concerns discreetly

    12

  • Employer Dos

    Educate employees about managing privacy settings.

    Explain to employees that their duty of loyalty and confidentiality operates 24/7.

    Explain to employees that as long as they leave the company, its products, customers, business partners, and co-workers out of

    their social media activity, the company will have no interest or

    say in what they do off-duty and on their own devices.

    Link the social media policy to a companys other behavioural policies.

    13

  • Employer Dos

    Discourage employees from commenting on social media about breaking company news or non-public information without first

    obtaining approval from a designated company representative.

    o Company spokespeople must be identified for employees in

    advance.

    Provide employees with internal channels to vent.

    Explain to employees that they must assume that everything they learn about their co-workers is intended to be private and cannot

    be posted without their co-workers permission.

    14

  • Employer Dos

    Require employees to report inappropriate social media activity immediately to a designated company representative.

    o However, make it clear that employees who self-report a breach

    of the policy in a timely way will be treated more leniently if their

    breach was inadvertent and not malicious.

    Educate employees about all of the above and get buy in.

    o Give them real time examples of how companies (and by extension their employees) have been damaged by inappropriate

    social media activity.

    15

  • Employer Donts

    Dont assume employees understand social media.

    Dont assume employees understand any of their legal obligations.

    Dont turn all employees into brand ambassadors without educating them about appropriate messaging or the perils of

    social media.

    Dont adopt the disclaimer model too readily.

    Dont turn social media activity into compensable work.

    16

  • Social Media Policies are Necessary

    Written policies are needed when employees may need help in exercising their judgment

    Establish bright lines to prevent problems and to support discipline when employees cross those lines

    Employers could do a better job of proactively explaining perils of social media to their employees

    17

  • Social Media Policies Contents

    1. Explain what social media is and what types of activities the

    policy intends to cover (useful to mention specific sites, but not

    limit it to them)

    2. Remind employees about the perils of social media (durability of

    electronic information, easy access by persons outside the

    workplace, etc.)

    3. Explain to employees the extent to which the policy covers off-

    duty social networking activity

    They may not disparage their employer or co-workers using social media, at or outside the workplace

    They should be discouraged from discussing the workplace and their co-workers on social media sites, even if they think they are

    doing so anonymously

    They should be discouraged from identifying themselves with their employer

    18

  • Social Media Policies Contents

    4. Remind employees that they may not publish any comments that

    may negatively affect their employer or their employers customers or business partners

    5. Remind employees about their confidentiality obligations,

    including identifying the types of information that, if disclosed or

    misused by them, will result in their termination for just cause

    6. Prohibit the violation of laws (e.g. securities laws, defamation)

    7. Prohibit the violation of employer policies (e.g. harassment)

    8. Prohibit the use of their employers logos, trade-marks, slogans, etc.

    19

  • Social Media Policies Contents

    9. Prohibit speaking on behalf of their employer, especially about

    anything in relation to their employer that is currently in the

    news

    10. If not prohibited entirely, then explain extent to which social

    networking is permitted on employers computers and during working hours

    11. Explain any specific rules regarding the use of social media in

    work-related capacities (e.g. Friending customers)

    12. Advise employees that their use of social media while at work

    will be monitored (i.e. no expectation of privacy)

    20

  • Social Media Policies Contents

    13. Direct employees to respect their co-workers privacy and warn them about cyber-bullying

    14. Advise employees of the proper channels available to them to

    express workplace concerns (instead of blogging about them!)

    15. Caution employees that not every violation of this policy may be

    detected, so they should never assume that any questionable

    behaviour has been condoned by their employer

    16. Advise employees of the consequences of violating the policy

    (e.g. employer will report unlawful activity to the authorities,

    termination for just cause)

    21

  • Social Media Policies Contents

    17. Require employees to report breaches (by others and

    themselves) immediately.

    18. Advise employees that anonymity and use of pseudonyms will

    not excuse breaches of the policy.

    19. Make compliance with the policy a term of ongoing employment.

    20. Include a sign-off acknowledgement page.

    22

  • Social Media What to Look Forward To?

    Social networking and restrictive covenants (e.g. non-solicitation obligations)?

    Updating employment contracts to address social media issues

    Un-friending customers upon termination

    Who owns the contacts, social media account?

    Cyber-bullying legislation

    Unionization via social media

    23

  • Case Law Update Simard Westlink Inc. v. Wallace, 2013 BCSC 2218

    o warehousing business sought injunction against dismissed employee

    who had posted embarrassing YouTube videos that disclosed

    information about its customers and their products

    one video suggested customers food products were being stored next to toxic chemicals

    o permanent injunction obtained against employee for breach of

    confidentiality

    Perez-Moreno v. Kulczycki, 2013 HRTO 1074

    o (personal) respondent posted on Facebook that she had been

    disciplined for calling applicant an ethnic slur at work

    o Human Rights Code protects employees from harassment by their

    co-workers via social media

    o respondent ordered to take Human Rights Commission sensitivity

    course

    24

  • Case Law Update

    Communications, Energy and Paperworkers Union of Canada, Local 64 v. Corner Brook Pulp and Paper

    Limited, 2013 CanLII 87573 (NL LA)

    o dismissal of employee upheld where she posted threatening

    comments and ethnic slurs on Facebook directed at supervisors

    when she became frustrated with safety investigation

    25

  • Case Law Update Bell Technical Solutions v. Communications, Energy and Paperworkers Union of

    Canada (Facebook Posting Grievance), 2012 OLAA No 481

    o Facebook postings that ridiculed employer and supervisor

    o Two employees dismissed; one dismissal upheld but other employee reinstated with

    one-year suspension

    [I]t is well-established that inappropriate Facebook postings could result in discipline or discharge, depending upon the severity of the postings. The nature

    and frequency of the comments must be carefully considered to determine how

    insolent, insulting, insubordinate and/or damaging they were to the individual(s)

    or the company. In some cases, the issue is whether the comments were so

    damaging or have so poisoned the workplace that it would no longer be possible

    for the employee to work harmoniously and productively with other employees or

    for the company

    o Dismissal factors: Facebook postings were frequent and prolonged (more than 16

    months); derogatory to employer and supervisor

    o Reinstatement factors: provocation by supervisor

    26

  • Case Law Update Alberta Health Services, 2012 CanLII 12067

    o Discharge for harassment via Facebook overturned where grievor

    didnt appreciate that insulting co-worker through social media could be work-related (unpaid suspension substituted)

    Canadian Union of Postal Workers (Discharge for Facebook postings Grievance), [2012] CLAD No 85

    o Discharge for abusive comments on Facebook about manager

    upheld where some of grievors friends were co-workers

    Credit Valley Hospital v. C.U.P.E., Local 3252, 2012 CarswellOnt 451

    o Dismissal upheld of employee who briefly posted photos from scene

    of patient suicide and comments

    o Factors: breach of patient confidentiality; lack of candour

    27

  • Case Law Update Ornge, [2011] OLAA No 232

    o Discharge for disclosing patient information in blog about accident

    was overturned

    Blog was removed immediately, sincere remorse, and apology provided

    Ontario (Ministry of Community and Social Services) (Aboutaeib Grievance), [2011] OGSBA No 167

    o Employers blog degenerated into forum for attacking management and co-workers thanks to grievors, whose discharges were upheld

    Other factors: dishonesty when confronted, no remorse hard core pornography, conflict of interest (personal business)

    28

  • Case Law Update

    Groves v. Cargojet Holdings Ltd, [2011] CLAD No 257

    o Discharge overturned for grievor who posted on Facebook that she

    wanted to kick lead-hand in the genitals wearing steel-toed boots

    and spit in lead-hands face

    o Factors: Facebook posts were limited to grievors friends; nothing damaging to employers reputation

    Health Sciences Assn. of British Columbia (Cheema Grievance), [2011] BCCAAA No 125

    o Discharge for time theft overturned where grievors unauthorized use of social media during working hours didnt compromise workplace performance

    29

  • Case Law Update

    International Union of Elevator Constructors, Local 50 v. ThyssenKrupp Elevator (Canada) Ltd., 2011 CanLII 46585 (OLRB)

    o Dismissal upheld of employee shown in video, shot during lunch

    break, with genitals stapled to wooden plank posted

    o Factors: employee and employer easily identified in video; employer

    was engaged in safety-sensitive industry so it could not tolerate risk

    to its reputation and had to deter other employees from engaging in

    stunts, horseplay, pranks, etc.

    30

  • Case Law Update S.G.E.U v. Saskatchewan (Ministry of Corrections, Public Safety &

    Policing), 2009 CarswellSask 913

    o Dismissal of three corrections officers upheld for joining racist

    Facebook group created by one of them

    o Derogatory comments re compensation for First Nations victims of

    residential schools who were inmates: What could you do with at least $28,000 in healing?

    o Factors: employees were peace officers

    31

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