Social Media in the Modern

WorkplaceHow HR Can Protect the Organization and

Use Social Media Strategically

Presented by

Stuart E. Rudner

Rudner MacDonald LLP

About Stuart Rudner• Founding partner of Rudner MacDonald LLP, law firm

specializing in Canadian Employment Law• Repeatedly named one of top employment law

practitioners in Canada• Named one of Canada’s top Legal Social Media

Influencers • Counsel at Supreme Court of Canada on leading case• Author of You're Fired! Just Cause for Dismissal in

Canada and contributor to four other employment law texts

• Founder of the Canadian HR Law Group on LinkedIn

Employees Gone Wild

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Online request for marijuana

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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Insulting potential customers

Ontario Hockey League Ref:

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

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• 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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Harassment

Post 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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“Cyberslacking”

• Staff with FaceBook open all day

• Hours & hours online

• Talking and texting on personal cell phone while at work

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Why Should We Be Concerned About Misuse?

• Lost productivity

• Inability to Manage

• Corporate liability– Harassment

– Copyright

• 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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• Lougheed Imports Ltd (West Coast Mazda) v. UFCS Local 1518

– ongoing union organizing battle

– employees fired for posts on Facebook

– posts included homophobic slurs and threats online against bosses

– When a labour relations lawyer calls ya at 7PM and ya fax him 25 task sheets, ya gotta wonder??? Unfair labour practices, coupled with workplace harassment....C'mon Guys??? At least read up on the laws before ya throw the first punch...because that second punch can by a DOOZY....

– Hhhmmmm??? According to this reprimand at work, Imconfrontational & disruptive to the WHOLE shop ... AND .... My outburst yesterday was threatening and didn’t allow The WestCoastAutoGroup to conduct regular business.... well????All I Gotta say is they pissed off the WRONG GUY ....big time.

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• Is wondering if his 2 supervisors at work, go to the bathroom together?? And who holds who's penis while pissing??

• I heard that Marco and [F.Y.] were seen fondling each others nut sack in the shop bathroom?? Any truth to that? That shop ripped off a bunch ppl I know.

• Was asked for my opinions at a morning safety meeting...I replied "No comment"... Seems my Boss, whos owned the business 25 yrs & is fixed operations director of 2 dealerships as well ... couldnt comprehend my reply?? So its confirmed...HE’S A COMPLETE JACK-ASS... not just Half-a Tard.

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• don't spend your money at West Coast Mazda as they are crooks out to hose you and the shop ripped off a bunch of people I know

• I dont think theres enough room on Facebook to type all the bullshit out... gloves are off now....its game time

• Somethings just shouldn’t be broadcasted on facebook, especially when you still work there.

• That’s the whole point honey

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Don’t Fire The Twitter Guy

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Managing Online Recommendations

• Employee dismissed due to poor performance

• Former manager gave him LinkedIn recommendation week before 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”…”

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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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Can You Discipline for Off-Duty Conduct?

• Generally, what you do on your time is your business

• But not if

– 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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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”

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

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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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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

USING SOCIAL MEDIA FOR GOOD

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The Hiring Process

• Dealing with publicly available information online

• Courts recognizing Facebook and similar postings not necessarily “private”

• Don’t demand access or password

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Caution

• Risk of inaccurate information

– Wrong person

– Information is wrong

• Risk of stumbling on inappropriate information

– Race

– Age

– Disability

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Human Rights Code

• Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability

• You don’t want to know more than you need to

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Mitigating Risks

• Have protocol for every applicant

• Screen candidates in consistent manner

• Have non-decision maker filter out inappropriate info

• Log reasons for not hiring

Employment Agreements

• Use them!

• Do it properly

• Before there’s already an agreement

• With consideration

• Explained and understood

• Independent legal advice

Employment Agreements

• Use to control social media usage

• Also to establish ownership of accounts

• Termination Provisions

• Post-Employment Duties

Termination Clauses

• Avoid uncertainty of “reasonable notice” & reduce dismissal costs

• Use clear language

• Don’t go below employment standards

• Address benefits

• Address mitigation

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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

416-640-6402www.rudnermacdonald.com

Twitter: @CanadianHRLawLinkedIn: Connect with me, join the

Canadian HR Law Group and visit the Rudner MacDonald Page

Blog: Canadian HR Lawhttp://www.hrreporter.com/blog/canadian-hr-law

Facebook: Rudner MacDonald PageGoogle+: Canadian HR Law, Rudner MacDonald

PageYouTube: Rudner MacDonald channel

IHRIM needs your feedback!Please submit a session evaluation for

Session 190

Social Media in the Modern

Workplace: How HR Can Protect the

Organization and Use Social Media

Strategically

Presented by

Stuart E. RudnerLawyer

Rudner MacDonald LLP

Thank You!