Employer Monitoring of Off-Duty Social Media

800 Park Place, 666 Burrard Street | Vancouver, BC V6C 3P3
info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com
Saturday, January 31, 2015
MONITORING OF OFF-DUTY
SOCIAL MEDIA USE
The purpose of this presentation is to provide an overview of this area of the law. This does not by any means constitute
a full analysis of the law or an opinion of Roper Greyell LLP or any member of the firm on the points of law discussed.
© Roper Greyell LLP 2015
James D. Kondopulos
Partner
(604) 806-3865
jkondopulos@ropergreyell.com
David S. Louie
Articled Student
(604) 806-3845
dlouie@ropergreyell.com

info@ropergreyell.com | 604.806.0922 | www.ropergreyell.com2
Monitoring of off-duty social media use
OFF-DUTY
BEHAVIOUR
EMPLOYER
MONITORING
SOCIAL MEDIA
USE

Risks of off-duty social media use
 Harm to employer reputation / business
 Defamation
 Breach of duty of fidelity
 Breach of duty of confidentiality
 Insubordination
 Harassment / threats
 Vicarious liability

Agenda
1. Privacy rights
2. Monitoring
3. Discipline
4. Policies

Privacy rights:
General privacy law principles
 Balancing interests
 Employer’s right to manage the workplace
 Employee’s right to privacy
 Reasonableness test underlying case
law – roots in the arbitral case law and
now codified in legislation

Privacy rights:
Sources of privacy rights
1. Legislation
 Provincial – British Columbia
 Personal Information Protection Act (PIPA)
 Freedom of Information and Protection of Privacy Act (FOIPPA)
 Privacy Act
 Federal
 Privacy Act
 Personal Information Protection and Electronic Documents Act
(PIPEDA)
2. Common law
 Reasonable expectation of privacy
 Balancing of interests
 Intrusion upon seclusion

Privacy rights:
Legislation
 Collection of employee personal
information (PIPA s.13)
 Organization may collect employee personal
information without consent if
 the collection is reasonable for the purpose of
establishing, managing or terminating an
employment relationship between the organization
and the individual
 Organization must notify that individual
about the collection and purpose

Privacy rights:
Common law
R v. Cole, 2012 SCC 53
 Reasonable expectation of privacy in personal
information on workplace computers, where use is
reasonable expected
 Temporary Internet files
 Cache files
 Browsing history

Privacy rights:
Common law
Jones v. Tsige, 2012 ONCA 32
 Employee of the Bank of Montreal snooped and
reviewed a co-worker’s personal bank records 174
times over four years
 Court observed:
 These were facts that “cry out for a remedy”
 Charter jurisprudence recognizes privacy as a fundamental
value
 Legal commentators and academics have long supported
recognition of a right of action for breach of privacy

Privacy rights:
Common law
Jones v. Tsige, cont'd
 Court recognized a new action in tort: intrusion
upon seclusion
 Elements:
 Intent (which can include recklessness)
 Invasion of the plaintiff’s private affairs or concerns –
without lawful justification
 Highly offensive conduct causing distress, humiliation or
anguish
 Proof of economic harm is not an element

Monitoring
 Tests differ between privacy commissioners
and arbitrators
 There is, however, a common thread – the
central concern of all adjudicators is the
balancing of:
 Employee right to privacy
 Employer right to manage business and the
workplace, including security of persons and
property

Monitoring:
Limits to surreptitious collection
Order F07-19; University of British Columbia,
[2007] B.C.I.P.C.D. No. 30 (“UBC”)
 Discharge, in part, for excessive Internet use
 UBC utilized log file reports and computer spyware to
surreptitiously track the employee’s Internet activity
 UBC policy allowed for some Internet use
 Employee never tried to hide Internet activity
 Employee alleged this collection of his personal
information was contrary to ss. 26 and 27 of FOIPPA

Monitoring:
UBC, cont'd
 Held:
 Collection was not authorized under s. 26 because it was
not necessary for the management of the complainant's
employment – especially in light of the fact that the
employer had never raised any concern about the Internet
activity
 Manner of collection was not contrary to s. 27, since the
information was required to be directly collected from the
complainant and was in fact directly collected from him –
the requirements of advance notice were, however, not met

Monitoring:
HEABC v. Health Sciences Assn. of British
Columbia (Internet Audit Grievance), [2011]
B.C.C.A.A.A. No. 60 (“HEABC”)
 Grievor terminated for excessive Internet use
 At arbitration, the employer intended to rely on an
investigation report relating to the Grievor’s Internet use to
support its decision to terminate the grievor's employment
 Union objected to admission of the report into evidence on
the basis that it infringed the grievor's right of privacy
(contravention of s. 26 FOIPPA)

Monitoring:
HEABC, cont'd
 Evidence admitted
 Employer acted in response to a complaint that the grievor was
misusing employer time and property
 Audit was a means to examine the truth of allegation
 Nature and extent of the information collected was appropriate
and necessary having regard to the purpose for which it was
collected
 Conducted in a reasonable manner
 Information related directly to and was necessary for an
operating program or activity of the public body – there was
thus no contravention of FOIPPA

Monitoring:
UBC HEABC
Focus was on work productivity and the
problem was the failure of the
complainant to adhere to an unknown
policy
Focus was an allegation of deliberate
misuse of employer time and property,
where the grievor deliberately ignored the
employer’s policy
Complainant was never made aware of
the policy and the language regarding
incidental use
Grievor was well aware of the policy – he
reviewed and signed the policy and was
aware of the consequences of breaching
it
Employee did not appear to be a deceitful
witness or an unreliable source of
information
Grievor was unreliable as a source of
information about Internet use
Supervisor sat 10 feet away and failed to
bring the matter to the complainant's
attention
Grievor worked independently, and the
evidence was otherwise incomplete

Monitoring:
GPS and telematics tracking
 Use of GPS, including cell phones with GPS, and
telematics devices held to be reasonable under
PIPA for:
 Scheduling vehicle maintenance
 Monitoring vehicle use
 Ensuring efficient service routes
 Ensuring safe driving
 Ensuring proper hours of work
 Ensuring compliance with rules relating to use of company
vehicles
 No continuous, real-time monitoring of employee
whereabouts

Employer response:
Discipline issues
 Impact on employer’s business
 Reputation
 Ability to manage workplace
 Impact on co-workers and customers /
clients
 Relevance of policies
 Role of progressive discipline

Just cause for discipline for off-
duty conduct
 Impacts on or related to the business
 Prejudicial or harmful to the employer's
legitimate business interests
 Adversely affect employer’s ability to
conduct its affairs and direct its workforce in
an efficient manner
 Poisoning of the workplace

Comments about supervisors
Lougheed Imports Ltd. (c.o.b. West Coast Mazda),
[2010] B.C.L.R.B.D. No. 190 (“Lougheed Imports”)
 Union organizing drive
 Two known union supporters made comments on
Facebook:
 "Sometimes ya have good smooth days, when
nobodys f***ing with your ability to earn a living ... and
sometimes accidents DO Happen, its unfortunate, but
that's why there called accidents right?”

Comments about supervisors
Lougheed Imports, cont'd
 No serious expectation of privacy given that the
Facebook posts were visible to everyone on the
employees' “friend” lists
 Posts were damaging to the employer's business
reputation
 Terminating employee over aggressive, foul-
mouthed Facebook comments did not amount to an
unfair labour practice

Comments about co-worker
United Steelworkers of America, Loc. 9548 v.
Tenaris Algoma Tubes Inc. (D. Grievance), [2014]
O.L.A.A. No. 180 (“Tenaris”)
 Crane operator complained about a co-worker on
his Facebook page
 Reference to a very violent and aggressive sexual
act (threat of both sexual and physical assault)

Tenaris, cont'd
 Did not reference victim by name
 Did, however, reference a distinct physical
characteristic and associated nickname
 No privacy settings
 Co-workers commented on the post
 Victim saw the post and was devastated
 Supervisors viewed the post

Tenaris, cont'd
 Discharged for just cause
 Arbitrator upheld the termination
 Seriousness of the comments was an aggravating factor
 Grievor had time to consider his words
 Technically was not “off duty” conduct because it was
directed at the work environment and had the effect of
poisoning it
 Employer has a duty to maintain a harassment-free
workplace

Video harming business reputation
ThyssenKrupp Elevator (Canada) Ltd., [2011]
O.L.R.D. No. 2871 (“ThyssenKrupp”)
 Employee posted online video of a co-worker having
his scrotum stabled to a 4x4 wooden plank
 Occurred at the worksite in the lunchroom
 Employer uniforms were visible in video

Video harming business reputation
ThyssenKrupp, cont'd
 Board held:
 Employer was engaged in a safety-sensitive industry
 There was significant prejudice to the employer’s
reputation
 Significant interest in preventing employees from
engaging in pranks or horseplay in the workplace –
and also a legal obligation in this respect
 Termination upheld

Comments contrary to employer’s policies
and organizational mission and philosophy
Wasaya Airways LP v. Air Line Pilots Assn.,
International (Wyndels Grievance), [2010] C.L.A.D.
No. 297 (“Wasaya”)
 Grievor, an airline pilot, posted a note on Facebook:
“You know you fly in the north when …” – 10 items were
listed which were offensive and off-colour
 Wasaya Airways owned and operated by a First Nations
group, and 90 percent of its customers of Aboriginal
descent
 Employer policy regarding respect for First Nations

Comments contrary to employer’s policies
and organizational mission and philosophy
Wasaya, cont'd
 Held:
 While the misconduct was deserving of some penalty,
the grievor intended the postings to be humorous and
there were also several mitigating factors
 Grievor would be unable to work effectively with
owners or customers given the nature of the posting
 Four-month suspension was substituted for the
discharge but on the condition that the grievor resign
from employment

No warnings for inappropriate tweets
Kim v. International Triathlon Union, 2014 BCSC
2151 (“Kim”)
 Senior Manager of Communications for the
International Triathlon Union (ITU)
 Personal twitter account and blog
 Told not to use “Paula Kim ITU” twitter handle

Kim, cont'd
 Tweets:
 "I wonder if other congresses have as much
propaganda as ours ..."
 “Surprisingly fun congress after-party last night. probly
only time I'll see so many Eboard members hungover
& lamenting those tequila shots …"
 Series of tweets during a triathlon event in which she
publicly supported some athletes over others

Kim, cont'd
 Dismissed and sued for wrongful dismissal
 Held:
 Employer failed to warn the plaintiff that her
communications were putting her employment in
jeopardy
 No just cause for termination – notwithstanding
the plaintiff’s senior position in communications

Social media evidence
Teck Coal v. United Mine Workers, [2010] A.G.A.A.
No. 37 (“Teck Coal”)
 Grievor was a two-year Process Operator
 Prior counseling for excessive absences
 Required to provide medical report for all absences
 Offered EFAP
 Written warning for being absent without leave
 Written warning for sleeping on the job
 Dismissal for improper absences and dishonesty

Teck Coal, cont'd
 Sept. 18: Warned again that absenteeism could
result in discharge
 Sept. 19 and 21: Facebook postings indicated he
was “ready to party”
 Sept. 23 to 26: Grievor claimed he was too sick to
work

Teck Coal, cont'd
 Medical experts said the grievor was not an
alcoholic – he was just “immature and irresponsible”
 No duty to accommodate
 Grievance denied

Policies
 Policies:
 May diminish the reasonable expectation of
privacy – provided they are properly drafted and
use the right language
 May not remove the reasonable expectation of
privacy entirely
 Consider the “totality of the circumstances”
R v. Cole

Policies
 Addressing use and misuse of social media in
the workplace assists in managing the risks and
avoiding or minimizing potential liability
 Harnessing social media to your business
advantage includes developing best practices in
policies and procedures
 Policies and practices will vary depending on
the nature of your business and your
organizational needs and mission or philosophy
 Bottom line: Fancy technology but the same
old principles apply

Policies - Steps
1. Decide on your policy approach
 Are you going to promote use?
 Are you going to prohibit misuse?
 Not an all-or-nothing proposition – can
incorporate elements of both
 This is a business decision that will of course
affect and reflect your corporate culture

Policies - Steps
2. Consider other relevant policies that
need to be aligned
 Confidentiality
 Computer use
 Respectful workplace / harassment and
discrimination
 Privacy

Policies - Steps
3. Consider specifically what you want to
address in your social media policy
 Offensive or defamatory comments
 Unsavoury images
 Photos related to the workplace
 Insubordinate content
 Unauthorized use of corporate logo or trademarks
 Inappropriate identification of individuals as employees
 Off-duty personal use impacting on the workplace
 Use which is incompatible with other policies

Policies - Steps
4. Clearly communicate your expectations
 Clearly communicate the policy to all affected
persons
 Take proactive steps to address the issue
before you have a problem
 Consistently apply the policy but do not
overreach
 Consider giving employees a chance to remove
the offending material after implementing the
policy – i.e. a wash-out period

QUESTIONS?
David S. Louie
Articled Student
(604) 806-3845
dlouie@ropergreyell.com
James D. Kondopulos
Partner
(604) 806-3865
jkondopulos@ropergreyell.com

Employer Monitoring of Off-Duty Social Media

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