© 2013 stewart mckelvey. all rights reserved. not to be copied or used in whole or in part without...

© 2013 Stewart McKelvey. All rights reserved. Not to be copied or used in whole or in part without the express written consent of Stewart McKelvey

#SOCIALMEDIA AND YOUR WORKPLACE

PRESENTED BY:

RUTH TRASK

© 2013 Stewart McKelvey all rights reserved

• Social networking sites have blurred the line between employee’s personal life and employer’s business interests.

• Information can be uploaded and broadcast instantaneously to wide number of “friends”, acquaintances and strangers.

• Frequently seeing employment-related cases stemming from social media use.

INTRODUCTION

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• For employers, the social networking concern is twofold: (i) employees post content without considering employment implications; and (ii) the proliferation and exponential reach of social networking.

• Idea that “the Internet is forever”, particularly if information is re-circulated and re-posted.

• Potential to reach a global audience at virtually no cost to users.

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SOCIAL MEDIA AFFECTS YOUR WORKPLACE


• Short communications, often made on the spur of the moment, are vulnerable to misunderstandings, and can result from a brief moment of poor judgment.

• Like other forms of communication, electronic posts can be harassing, discriminatory, or defamatory.

• When employees are tweeting or sharing status updates, they’re not working.

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SOCIAL MEDIA AFFECTS YOUR WORKPLACE


• Checking up on new employees: Privacy and Pre-hiring

• How does social media impact the workplace? Case discussion

• Policy, policy, policy (we can’t say it enough)

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OVERVIEW


PRE-EMPLOYMENT

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Pre-Employment and Hiring Checks

• Users have no reasonable expectation of privacy over content they upload to a social networking site (Lougheed Imports, 2010: BCLRB, Canada Post, 2012: CLAD).

• No prohibition on using Google or social media to gather information for purpose of pre-employment or background checks.

PRE-EMPLOYMENT

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PRE-EMPLOYMENT

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Human Rights

• General Rule: Do not use any information gathered in pre-employment period in a manner inconsistent with human rights legislation (i.e., race, religion, disability).

• No discrimination based on prior, unrelated conviction of a criminal offence.

• Cannot make hiring decision based on any protected human rights characteristic.


PRIVACY

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R v. Cole (2012 SCC)• Teacher had work-issued laptop on which was stored

child pornography.• Reasonable expectation of privacy in hard drive of laptop

given employee’s permitted personal use of system.• Employer policy was permissive as to personal use.• But, laptop issued for a work-related purpose as part of

an integrated business information system.• Employers may have an interest in monitoring network

activity and computer contents, including for safety and security reasons.

PRIVACY

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DISCIPLINE – THREATENING AND DEROGATORY COMMENTS

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DISCIPLINE – THREATENING AND DEROGATORY COMMENTS

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• Employees are accountable for Facebook comments, blogs, or tweets that are threatening, derogatory or that violate company policies.

• In non-unionized context, issue is whether comments or policy breach has left the relationship irreconcilable.

• In unionized context, issue is whether there are mitigating factors.

• Are the comments “connected to” the workplace?


Canada Post (2012: CLAD)

• Postal clerk, 31 years’ service, fired after postings (made over a month) that were derogatory and mocking statements about supervisors and the employer.

• Grievance dismissed. Facebook postings were abusive, intimidating, mocking, and widely accessible.

• Comments had potential to harm employer AND had greatly harmed the supervisors. Two targeted supervisors suffered from emotional distress.

THREATENING AND DEROGATORY COMMENTS

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Teck Coal (2010: AGA)

• Grievor dismissed for absenteeism and abuse of sick leave.

• Employee advised employer he was too sick to work but, at the same time, posted Facebook comment:• “In the City and ready to party”

• Arbitrator found that employee was abusing sick leave.

ABUSE OF SICK LEAVE

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Sheridan College v OPSEU (2010 ONARB)

• IT employee grieved termination for unauthorized, inappropriate use of employer’s computer network.

• After termination, employee posted photo to Facebook page showing rear end of rock climber, with a comment to the effect that his supervisor should “kiss this”.

• Employee removed the photo that same day.• Employee had allowed unauthorized users to access

network, and lied during the investigation.

EMPLOYER EQUIPMENT

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Sheridan College v OPSEU (2010 ONARB)

• Arbitrator found that employee did not have a reasonable expectation of privacy.

• Policy clearly stated that an employee’s IT activities could be monitored, and the employee made no attempt to hide his activities.

• Importance of policy governing appropriate use of computer resources, which are necessary to carry out job functions.

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EMPLOYER EQUIPMENT


Alberta Union of Provincial Employees (2012: AGAA)

• Grievor was regular PT clerical employee who was fired for improperly touching a co-worker and posting harassing messages on Facebook.

• Termination followed earlier 5-day suspension for ‘sexual harassment’.

• Grievor unable to concede certain facts or admit anything, categorically denied behaviour was blameworthy.

WORKPLACE HARASSMENT

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• What do you think?

• Postings made while at work.

• Employer had “harassment policy”.

• Grievor allegedly struck co-worker on buttocks and, after co-worker complained, lengthy exchange of Facebook communications in which grievor talked about co-worker’s appearance and marital status.


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• Board characterized this as “workplace foolishness” and found discharge too excessive.

• 2 and 1/3 year suspension.

• Reinstated “to employment”, not to previous job.


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Credit Valley Hospital (2012: OLAA)

• Adolescent outpatient jumped to his death from employer’s multilevel parking garage.

• Grievor, assigned to assist scene cleanup, took pictures with his cell phone, and posted them on his Facebook page with a caption under each picture.• “this is what I have to clean up”• “Mother pleads with kid not to jump..but did anyways …”

• Grievor discharged for breaching confidentiality of patient, employee and corporate information.

BREACH OF POLICY

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• Signed off on confidentiality policy at time of hire.

• During investigation, he denied posting on Facebook, and said he didn’t know whether the deceased was a patient.

• What do you think?

• Arbitrator thought that employee ought to have exercised greater caution and diligence.

BREACH OF POLICY

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• “In my view, the Hospital’s Policy and Code clearly apply to [the grievor’s] actions, which must be viewed in their totality. He posted two pictures on his Facebook page of the scene with comments about the patient’s suicide on Hospital property that others viewed. By so doing, [the grievor] has publicized and disseminated confidential patient information on the Internet about this most tragic event”.

BREACH OF POLICY

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YOU NEED A POLICY!

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• Without a policy, discipline does not usually “stick”.

• A policy addressing social networking commentary, which is continuously updated and modified as new forms of social media develop.

• That policy, and consistent enforcement, is not foolproof, but will help support discipline.

• Maintain flexibility for work-related social media use, if needed.

YOU NEED A POLICY!

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• Employees can participate in social network activities on their own time.

• Define acceptable versus unacceptable activities.

• Social networking must not interfere with work duties.

• Employees must make it clear that their personal views are theirs alone and do not represent the views of their employer.

• Integrate with workplace bullying policy.

YOU NEED A POLICY!

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• Strike a balance between need to monitor versus allowing employee freedom to perform job functions.

• After the decision in Cole, be clear if your intention is to preserve your access to information stored on employees’ work computers.

• Ensure that you are prepared to enforce your policy.

• A policy that goes ignored day-to-day is not likely to be enforced by an arbitrator.

YOU NEED A POLICY!

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• Employees must respect confidential and proprietary information including logos, copyrighted material, or registered trademarks.

• Make it clear that discipline or termination may result from violating the policy.

• Review with employee and have them acknowledge by their signature.

• Train managers.

• Be transparent about your intentions.

YOU NEED A POLICY!

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QUESTIONS

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THANK YOU!

Ruth E. Trask

709.570.8893

[email protected]

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mailto:[email protected]


These materials are intended to provide brief informational summaries only of legal developments and topics of general interest. The materials should not be relied upon as a substitute for consultation with a lawyer with respect to the reader’s specific circumstances. Each legal or regulatory situation is different and requires review of the relevant facts and applicable law. If you have specific questions related to these materials or their application to you, you are encouraged to consult a member of our firm to discuss your needs for specific legal advice relating to the particular circumstances of your situation. Due to the rapidly changing nature of the law, Stewart McKelvey is not responsible for informing you of future legal developments.

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© 2013 stewart mckelvey. all rights reserved. not to be copied or used in whole or in part without...

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