Five social media issues for employers lawyers

Six Social Media Issues for EmployersLawyersDan MichalukOsgoode PDP – Employment Law 2011December 12, 2011

Six Issues for Employers Lawyers• Issue 1 – Use for hiring purposes• Issue 2 – Off duty conduct• Issue 3 – Use on behalf of the company• Issue 4 – Ownership of accounts• Issue 5 – Attacks by the aggravated outsider• Issue 6 – Evidence preservation in practiceSix Social Media Issues for Employers Lawyers

1. Use for hiring purposes• Law • If privacy legislation does not apply, then right to collect is unlimited • If privacy legislation does apply, then the necessary collection rule may bind • In any event, human rights considerations require checks through a careful processSix Social Media Issues for Employers Lawyers

1. Use for hiring purposes• Practice • Consider notification (review applicable statutes) • Look for objective, relevant information • Not the decision-maker • Report in writing • Verify the accuracy • Preserve the report on the hiring fileSix Social Media Issues for Employers Lawyers

2. Off duty conduct• Law • Duty of fidelity applies when employee expression is likely to negatively affect a legitimate employer interest • All other activity is “private” • The analysis is contextual, norm-defining • “Conversation” is the metaphor people use for social media communications, but the law sees social media communications as plain old publication – see Leduc v. RomanSix Social Media Issues for Employers Lawyers

2. Off duty conduct• Practice • Go beyond a policy, have a internal communication campaign (see Victoria DOJ video) • Tell them you will treat publications to friends as publications to the worldSix Social Media Issues for Employers Lawyers

3. Use on behalf of the company• Risks • Too many employers are not controlling the employees who speak on their behalf • Risk 1 – Public affairs disaster • Risk 2 – Representation gives rise to liability • Risk 3 – Wage and hours claimSix Social Media Issues for Employers Lawyers

3. Use on behalf of the company• Practice • Most important policy rule – you don’t speak on our behalf unless we tell you • Second most important policy rule – if you speak on your own and people may be confused, you must use a disclaimer • Then, deputize your non professional communicators… train them… control them by using a “streetlight” frameworkSix Social Media Issues for Employers Lawyers

4. Ownership of accounts• Ownership • For accounts that are… • …company created • …company branded • …maintained by paid employeesSix Social Media Issues for Employers Lawyers

4. Ownership of accounts• Practice • If there’s any question about who will own it, give a clear written direction to the password holder • Password control is essential… re-take control before having any kind of tough talk • Don’t go to war with a departed employee he/she owns the followers in heart… they’ll just follow him elsewhereSix Social Media Issues for Employers Lawyers

5. Attacks by outsiders• Law • You have a duty to provide a safe and harassment free workplace (OHSA, HR Codes) • When this duty is engaged, a takedown effort will not necessarily be required to discharge the duty • You don’t have a recognized duty to help vindicate an employee’s reputation (Tipple)Six Social Media Issues for Employers Lawyers

5. Attacks by outsiders• Practice • Tell managers not to react and over-promise • Message carefully – don’t take responsibility for reputational harm • Deal with the impact in the workplace and refer to sources of personal assistance (EAP) • Tell them to get independent legal adviceSix Social Media Issues for Employers Lawyers

6. Evidence preservation in practice• Who? Not external counsel• What? The full context• When? Immediately, periodically• How? • Printouts are probably okay (browser or screen cap) • Signed, dated and time stamped by hand • Record information about relevant links between pagesSix Social Media Issues for Employers Lawyers

Dan Michaluk 416-864-7253 daniel-michaluk@hicksmorley.com Twitter - @danmichaluk http://ca.linkedin.com/in/danmichaluk http://www.allaboutinformation.caSix Social Media Issues for Employers Lawyers

Six Social Media Issues for EmployersLawyersDan MichalukOsgoode PDP – Employment Law 2011December 12, 2011

Five social media issues for employers lawyers

by Dan Michaluk

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