Edward Majewski, PartnerGowling Lafleur Henderson LLPLexpert – Fifth Annual Social Media Law Conference June 8, 2015

Social Media And Employees – A Potentially

Dangerous Mix!

Introduction

• DO think twice about whether you should encourage employees to use social media for work-related purposes– social networking vs. social notworking

• DON’T 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.)

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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

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Social Media as a Tool…Recruiting/Screening

• Human rights issues– Knowing things you shouldn’t know about the candidate, e.g. age,

race, religion, disability, etc.o Safest approach: don’t search online (or don’t review online search

results) before making a conditional offer

• Decision-maker shouldn’t conduct the online search

• Privacy law issues– Collecting, using and retaining personal information about

candidates (even if it’s irrelevant and doesn’t offend human rights legislation)

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

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Social Media as a Tool…Recruiting/Screening

• Fairness issues – internet is unreliable

– may be limiting hiring to only those with digital presence

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Social Media…Legal Risks

– Vicarious liability for employees’ wrongs committed in the course of their duties, even if employer didn’t 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!”

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Social Media…Legal Risks

– Admissions against employer’s interests

o Social media data, tweets, posts, blogs, etc. may be producible in litigation against employer (e.g. product liability, accident, etc.)

– Disclosure of employer’s (or employer’s customers’) confidential information

o Example: boasting about working on customer’s top secret project

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The Perils of Social Media: Duty of Confidentiality

• Employees have a duty to preserve the confidentiality of their employer’s 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”

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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)

• Employees cannot disparage their employers or engage in conduct that damages their employers’ business, even when that is done on their own devices, using their own bandwidth, and outside of working hours

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

• Exception: legitimate whistle-blowing

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

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Discipline for Off-Duty Misconduct: Test

1. Detrimentally affected the employer’s reputation;

2. Rendered the employee unable to properly discharge his or her employment obligations;

3. Caused other employees to (reasonably) refuse to work with the employee;

4. Impaired the employer’s ability to efficiently operate its business; and/or

5. Amounted to a serious criminal offence.

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Employer Do’s

• 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 company’s other behavioural policies.

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Employer Do’s

• 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.

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Employer Do’s

• 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.

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Employer Don’t’s

• Don’t assume employees understand social media.

• Don’t assume employees understand any of their legal obligations.

• Don’t turn all employees into brand ambassadors without educating them about appropriate messaging or the perils of social media.

• Don’t adopt the “disclaimer” model too readily.

• Don’t turn social media activity into compensable “work”.

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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

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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

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Social Media Policies …Contents

4. Remind employees that they may not publish any comments that may negatively affect their employer or their employer’s 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 employer’s logos, trade-marks, slogans, etc.

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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 employer’s 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)

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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)

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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.

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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

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Case Law Update

• Bates v Cable TV of Camrose Inc., 2015 CLAD No11o employee used position as cable box technician to get female

customers’ personal information and make advances o dismissal overturned

• factors: employee was remorseful, poor investigation by employer, behaviour could have been corrected with written warning

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Case Law Update

• Toronto District School Board v CUPE, Local 4400 (Hatzantonis), 2015 CarswellOnt 6561

o clerical employee, who didn’t work directly with students, dismissed after she lost her temper on a 14 year old student allegedly bullying her daughter

o threatened him and yelled obscenities at him o incident recorded by another student and posted on YouTube o charged criminallyo dismissal upheld

• factors: behaviour completely at odds with school board’s requirement that employees be role models to young people; tampered with investigation; dishonesty during investigation

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Case Law Update

• Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2014 CanLII 63576 (ON LA)

o bus driver dismissed for abusing sick benefits o employer received anonymous tip that employee had gone to Las

Vegas for his bachelor party o dismissal upheldo factors: defrauding sick benefits system is serious; continued to lie

even after shown Facebook evidence

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Case Law Update• Campeau v Yellow Quill First Nation, 2014 CLAD

No 217 o employee dismissed for being incompetent and posting abusive

comments about her supervisor on Facebook o dismissal upheldo comments on Facebook amounted to insubordination and

undermined employer’s credibility with clients

• factors: had friends on Facebook who knew where she worked; even though she didn’t call out supervisor by name, supervisor was identifiable

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Case Law Update• Duncan v L.A. Radio Group Inc., 2014 CLAD No 4

o radio announcer at family-based broadcaster dismissed for inappropriate behaviour

o Facebook post about wanting to buy guns shortly after the “Sandy Hook” shooting

o previous incidents included smoking marijuana behind a schoolo dismissed for refusing station manager’s request to discuss

Facebook posto dismissal overturned, but employee had already found another job

• factors: employer had failed to follow its own progressive discipline policy

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Case Law Update

• Kim v. International Triathlon Union, 2014 BCSC 2151o PR manager for international triathlon organization dismissed after

posting derogatory comments about supervisor (“taking shit”) and triathlon champions

o wrongfully dismissed o factors: employer should have warned her before dismissing her

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Case Law Update

• Taylor –Baptiste v OPSEU, 2014 ONSC 2169 o human rights complaint filed by female manager about union blog

postings alleging discrimination

• postings alleged that she was incompetent and alluded to her marital relationship with a senior manager

o court upheld HRTO decisions dismissing discrimination complainto factors: union wasn’t an ‘employer’; union leadership had a Charter

right to free speech

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Case Law Update

• Toronto (City) v Toronto Professional Fire Fighters’ Association, Local 3888, 2014 CanLII 76886

o firefighter’s tweets featured in National Post article about sexist culture in Toronto Fire Service

• had a long history of posting sexist, racist, and otherwise offensive tweets o identified himself as firefighter

o especially bad timing as TFS was just rolling out new workplace diversity program

o firefighter claimed he intended only his 29 Twitter followers to receive the tweets privately

o dismissal upheld

o factors:

• dubious apology and no genuine remorse • presumption that employees engaged in social media must understand that there

is a potential that their statements will be accessible globally (Wasaya Airlines)• employer actually suffered damaged reputation here, not just speculative

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Case Law Update • Toronto Professional Firefighters Association, Local 3888

v Grievance of Lawaun Edwards, 2014 CanLII 62879 (ON LA)

o other firefighter whose tweets featured in the same National Post article

o more sympathetic character than in earlier case o tweeted offensively on Twitter but fellow female firefighters backed

him up as a good guy

• ‘swatting a woman on the back of her head to re-set her brain’

• ‘N-word’ (but in context of racist terminology)

• ‘sweetie’

• dismissal overturned, 3-day suspension substituted

• factors: tweets were offensive but didn’t undermine employer’s efforts at diversity; one-time event(s); clean record

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Case Law Update

United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc., 2014 CanLII 26445 (ON LA)

o male and female coworkers get into dispute at work o male doesn’t identify female but mocks female’s distinguishing

feature on Facebook and states that she should be subject to a violent sex act

o dismissal upheld o factors:

• grievor failed to testify; cannot joke about causing sexual violence to women; not off-duty conduct because posting was meant to poison work environment for female colleague; apology offered too late; blemished record

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Case Law Update

Lee v Ontario (Ministry of Community Safety and Correctional Services), [2013] 229 LAC (4th) 260

o managers at detention centre grieving about employer’s failure to take action about union-controlled blog that accused them of incompetence, corruption

• ‘misfits’, ‘morons’, ‘pathetic’ o eventually, blog’s access restricted by passwordo grievances dismissed

• employer couldn’t be responsible for contents of blog, employer could discipline union members if it caught them

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Thank You

Edward Majewski, PartnerTel: (416) 862-4422Fax: (416) 862-7661Email: ed.majewski@gowlings.com