social media in the workplace - sasbosasbo.com/.../11/social-media-in-the-workplace.pdf · risks...

LAWYERS

Social Media in the

Workplace

April 30, 2015

Jade Buchanan & Kristél Kriel

www.mlt.com | Regina | Saskatoon | Calgary | Edmonton | Vancouver

LAWYERS

Click to edit Master title style

1. Introduction: Social Media Risks and Policies in Workplace

2. Specific Issues

a) Privacy and Cyber Bullying Laws

b) Monitoring Social Media

c) Misuse – Harassment

d) Misuse – Harming Employer Reputation

e) Misuse Breaching Third Party Rights – Disclosure, Defamation,

and Intellectual Property

3. Conclusions + Recommendations

Agenda

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1. Introduction to Social Media Risks

and Policies in the Workplace


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What is Social Media?

Social Media in the Workplace

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Statistics on Social Media in the Workplace*

Nearly 90% of businesses use social media for business purposes

>70% of businesses reported having to take disciplinary action against

employees for misuses (up from 35% the previous year)

36% of employers block access to social media sites

80% of businesses have social media policies (up from 60% the previous

year);

52.43% of employers’ social media policies cover both use at work and outside

of work

52.94% of businesses updated their social media policies in the past year to

help manage the risk of misuse

37.5% of employers provide employees with training on appropriate use of

social media

*Proskauer Rose LLP / Social Media in the Workplace Around the World 3.0 (2013/14)

Social Media in Workplace

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Interesting Statistics:

December 2008: Facebook had 100 million users.

March 2015: Facebook indicated that 1.44 billion monthly active

users.

Canada: Country with the most active Facebook users (per

capita) at 19 million.

Social Media Use

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Risks Social Media Presents to Workplace

1. Employee/employee interaction (harassment /

discrimination)

2. Employee misuse harms reputation of employer (attack

employer, offensive content, etc.)

3. Employee misuse of social media causes employer to

breach third party right (intellectual property, defamation,

criminal, breach of confidentiality)

4. Viruses/data breach

5. Lost productivity

Overview

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How a Social Media Policy Mitigates Risk / Protect

Employers and Employees

1. Preventative tools – Prevent incidents through education

and by controlling content

2. Investigative tools – Increase ability for employer to

monitor and investigate social media activity

3. Remedial tools – Provide tools for employers to discipline /

terminate employee for breach

Note: Tools are inter-related (e.g. education increases severity

of breach, increasing likelihood discipline will be upheld)

Overview

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2A. Specific Issues: Privacy and Cyber

Bullying Laws


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Collection, use and disclosure of personal information is

regulated by different statutes

There are different legislative considerations for public and

private sector employers

Federally and provincially regulated employers also have

different but similar privacy legislation

How do Privacy Laws Apply to Social

Media in the Workplace?

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Federal:

Personal Information Protection and Electronic Documents Act

(“PIPEDA”)

Protecting Canadians from Online Crime Act (the “Cyber Bullying

Act”)

Provincial:

The Local Authority Freedom of Information and Protection of

Privacy Act (“LA FOIP”)

The Health Information Protection Act (“HIPA”) for personal health

information.

The Privacy Act

Common law

What laws apply to Social Media in the

Workplace?

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Privacy legislation contains similar requirements regarding

collection, use and disclosure of personal information (PI):

Limits on the collection, use and disclosure of PI

Subject individual’s consent is required to collect PI

Exceptions to the general consent rule (these vary from statute to

statute)

Collection of PI must be reasonable for the purpose for which it is

collected

Reasonable steps must be taken to ensure that PI collected is

accurate, complete, up-to-date, and appropriately protected and

retained

Individuals have ability to access information in possession and

control of public bodies

What does Privacy Legislation require?

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Personal Information = Information about an identifiable Individual

Examples:

education;

criminal history;

employment history;

financial activities;

health history, home address and phone number;

personal views or opinions of the individual;

private or confidential correspondence;

views or opinions of another person about the individual;

tax information; and

the name of the individual if disclosure would reveal personal

information.

What is “personal information”?

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Common Law: Reasonable Expectation of Privacy

In workplace, employers must achieve a balance between: 1) the

employer’s business objectives, and 2) the employee’s right to

privacy.

R v Cole, 2012 SCC 53

High school teacher’s laptop contained nude photographs of minor

student.

The evidence collected from the laptop violated Cole’s Charter right

to be free from unreasonable search and seizure.

Canadians have a reasonable expectation of privacy in their work

computers where personal use is permitted or reasonably expected.

Common Law Interpretation

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Reasonable Expectation of Privacy in the

Workplace depends on:

1) Whether the employee owns the hardware and/or software;

2) Whether the technology is being used during business hours;

3) The employer’s policies surrounding internet and email use;

4) Whether the employee has been made aware of the employer’s

policies; and

5) The extent to which the employer’s policies are regularly and

consistently enforced.

Common Law Interpretation

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Addresses matters relating to cyber bullying

“Lawful access” provisions address search and seizure of

Internet data

Amends Criminal Code, Canada Evidence Act,

Competition Act, Mutual Legal Assistance in Criminal

Matters Act

Came into force on March 9, 2015

The Protecting Canadians from Online

Crime Act

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Cyber Bullying:

New criminal offence relating to “intimate images”

Wide powers for judges in relation to new offence

Existing offences expanded to include electronic communications

Lawful Access:

Demands for preservation of electronic evidence

Wide powers for judges relating to electronic evidence

Streamlined process for warrants and orders to intercept private

communications


Crime Act

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Interpretation of request for subscriber information from

ISP in R v Spencer, 2014 SCC 43

Police request for IP address relating to child pornography

Internet users have reasonable expectation of privacy in their

Internet activities and online ISP subscriber information

“Lawful authority” within PIPEDA means more than a “simple

request” from a government institution

Police should have obtained warrant or order to compel production

of information

Impact on The Protecting Canadians from Online Crime

Act


Crime Act

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2A. Specific Issues: Monitoring Social

Media in the Workplace


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Employers may sometimes be justified in monitoring an

employee’s online conduct:

Lougheed Imports Ltd. (cob West Coast Mazda) (Re), [2010]

BCLRBD No 190

Two Mazda employees were terminated after making a number of

posts on Facebook insulting the employer and their supervisors.

A supervisor noticed the comments and monitored their posts, even

after he was “unfriended” by the employees.

Held: The employees did not have a reasonable expectation of

privacy - the Facebook posts were visible to everyone on the

employees’ friend lists.

Monitoring Social Media Use in the

Workplace

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Unlike social media monitoring, monitoring technology use

is strict.

R v Cole: employees have a reasonable expectation of

privacy in their workplace computers.

Monitoring Technology Use in the

Workplace

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Canadian Railway Company v Teamsters Canada Rail

Conference, CROA&DR 2900:

Employer requested copies of an employee’s cell phone records

as part of an investigation into a train accident.

Held: Personal communications are, by definition, generally

entirely unrelated to an employee’s duties and responsibilities;

however, an exception was found in this case, for several reasons:

Information received only indicated that the employee had been

making a call at a certain time – the phone number and content of

any text was blacked out;

Employer chose the least intrusive method of obtaining information;

and

The employer had a carefully drafted policy which respected the

privacy rights of the employee.

Monitoring Technology Use in the

Workplace

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2C. Specific Issues: Misuse for

Harassment


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USWA, Local 9548 and Tenaris Algoma Inc., 2014 CanLII

26445 (ON LA)

Following end of a shift, grievor posted complaint about

coworker on Facebook, without naming her.

Comments between grievor and other employees

escalated over two hours. Comments included:

Her work ethic;

Distinctive physical characteristics;

Suggestions of performing physically aggressive and violent and

humiliating acts; and

A cruel nickname.

Harassment Via Social Media

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USWA, Local 9548 and Tenaris Algoma Inc., 2014 CanLII

26445 (ON LA)

Grievor apologized and deleted posts when confronted by

management.

Grievor sent home pending investigation.

Terminated.

Arbitrator noted several factors in determining termination

justified:

Vicious, humiliating and public nature of comments

Grievor only employed 3 years prior to termination; no trust

Employee received training on relevant social media policies


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Canada Post Corp v CUPW, [2012] AWLD 2981 (Alta Arb)

The grievor, a postal clerk with 31 years of service made

derogatory Facebook postings over a 1 month period

about her supervisors.

Postings were made during work and off of work.

The postings were sent to more than 50 of the grievor’s

Facebook friends, including a number of co-workers.

The supervisors required significant time off work for

emotional distress after reading the postings.

The grievor was terminated.


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Examples of postings:

Oct 10; 1:03 AM Grievor Off Work: Up and drinking again. 3

nights of freedom from Postal Hell. DIE BITCH DIE. I'm playing

with the Voo Doo doll. If I wasn't drunk I would take it to the

driveway and run the bitch over.

Nov 4; 3:43 AM Grievor At Work: Hello from stall 2. No sign of

the evil [D] so everything going smooth so far. It's only 3 40 am so

u never know. Her yes man [M] is here probably to make sure we

don't take extra an extra minute on the lunch break gotta go sort.

Nov 4; 8:53 AM Grievor Off Work: It was a long night, 10 hrs in

the mail mines. The Hag showed at 6 and the swoop through, I've

never seen her without the UGLY coat. C'mon voo doo doll work

your magic.


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Canada Post Corp v CUPW, [2012] AWLD 2981 (Alta Arb)

There is ample case law that supports the principle that

what employees write in their Facebook postings, blogs,

and emails, if publicly disseminated and destructive of

work relationships, can result in discipline.

The fact that the grievor was under a misapprehension

about who could access her Facebook site, did not relieve

her from the responsibility of what she wrote.

Termination upheld.


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2D. Specific Issues: Misuse Harming

Employer Reputation

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Thomas v. IBEW Union 424 (Alberta 2011)

Electrical apprentice working on the oil sands.

Posted blogs about conditions in work camp.

Complained about cleanliness of washrooms and limited

menu selections resulting in deficient diet.

Supported his complaints by posting pictures and videos of

the facilities online.

Terminated.

Violation of Internet Use Policy –

Blogging Photos

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Thomas v. IBEW Union 424 (Alberta 2011)

Site operator’s policy expressly prohibited taking of

photographs and videos.

Employee brought grievance contesting his termination.

Grievance dropped when union determined it had little

chance of success.

‘Duty of fair representation’ complaint against union

similarly dismissed.


Blogging Photos

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Thomas v. IBEW Union 424 (Alberta

2011)

Takeaway:

Clear employer policy saved the

day

Policy specifically identified “zero

tolerance”


Blogging Photos

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Account operator fails to switch between personal and

business account:

Account operator uses poor judgement:

“Autopilot” scheduled releases causes bad timing:

Embarrassing Statements by Operator

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2F. Specific Issue: Misuse Breaching

Third Party Rights – Disclosure,

Defamation, and Intellectual Property


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Employers may be liable for confidentiality breaches

caused by employees

Social media invites deliberate and accidental disclosure:

Posting photos from recognizable locations or disclosing

confidential information (e.g. prototype of device that is to be

patented)

Unintentional disclosure of location (GPS-enabled device used to

post on social media)

Disclosure of Confidential Information

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Defamation (libel/slander) lawsuits on the rise because of

defamation on social media

Employers can be liable for employee conduct where done

so in course of employment

Can be from employer account or employee account

Example: NBA referee sued Associated Press for

reporter’s tweet:

"Ref Bill Spooner told Rambis he'd 'get it back' after a bad call.

Then he made an even worse call on Rockets. That's NBA

officiating folks.“

AP settled for $20,000

Defamation and Social Media

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Mejia v. LaSalle College International Vancouver Inc.,

2014 BCSC 1559 (Copyright)

Sessional professor at LaSalle College terminated for “professional

unacceptable behavior”. Claimed for wrongful dismissal, defamation

and copyright infringement

LaSalle had used photograph taken by Mejia on it’s Facebook page

Copyright-protected work was photo taken by Mejia at “LaSalle

classroom and of a LaSalle student participating in a LaSalle event”

Photograph not taken in course of duties because Mejia was a

professor, not photographer

Granted minimum statutory damages of $500

Statutory damages are per work – damages for a photo album could

have easily been in 10s of thousands

Intellectual Property and Social Media

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3. Conclusions + Recommendations

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Develop a social media policy / technology use policy

Risk identification

Assign responsibility for policy reviews, refreshes and enforces

Include in the policy:

Who owns the systems (the employer/organization)

Candor with employees - no expectation of privacy in email &

Internet use on company system

Acceptable & unacceptable uses

Consequences of inappropriate use

On-going reminders and training

Specialized training / education for account operators

Ex-employees

Acknowledgment by employees

Prevention: Policies, Education and

Monitoring

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Conduct Investigations with Care

Approach from perspective avoiding future dispute

Ensure that requests for information are reasonable and

sufficiently related to business purposes

Ensure that privacy is intruded as minimally as possible

Obtain consent from employees whenever possible

Pay attention to collective bargaining agreement

Discipline

Properly justify and obtain counsel

Investigations & Discipline

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Thanks for attending!

Please note that the information contained in this

presentation is general in nature and does not

constitute legal advice, nor is it exhaustive on the

subjects noted.

Questions?

Thank you!

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Relevant MLT Blogs:

MLT Privacy Blog

MLT Technology Blog

MLT Employment Blog

MLT Intellectual Property Blog

More Resources

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http://privacylawadvisor.com/

http://technologylawadvisor.com/

http://westernemployerscounsel.com/

http://intellectualpropertyadvisor.ca/


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