Presentation for the Osgoode Hall Law School "HR Law for HR Professionals" course, centered on the topic of the pitfalls and opportunities of social media use in the workplace.

1. Social Media in the
Modern Workplace
How HR Can Protect the Organization and
Use Social Media Strategically
Presented by
Stuart E. Rudner
Rudner MacDonald LLP

2. 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

3. Employees Gone Wild
3

4. 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.”
4

5. Insulting potential customers
Ontario Hockey League Ref:
“Soo Saint Marie, two words, Slim Pickens.
#noteeth #hicktown #allfaties."
5

6. 6
• 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?

7. 7
FaceBook post:
“have to work this
weekend because our
new products failed
initial tests”

8. 8
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?

9. 9
“Cyberslacking”
• Staff with FaceBook open all day
• Hours & hours online
• Talking and texting on personal cell phone while at
work

10. 10
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

11. 11
Why Should We Be Concerned About Misuse?
(cont’d)
• Not just “desktop issue”
– Laptops
– iPads
– Smartphones
• 24/7
• On duty
• Off duty

12. 12
• 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

13. • 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, Im
confrontational & 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.
13

14. • 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.
14

15. • 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
15

16. Don’t Fire The Twitter Guy
16

17. Managing Online Recommendations
• Employee dismissed due to poor performance
• Former manager gave him LinkedIn
recommendation week before dismissal
17

18. 18
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

19. 19
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.

20. 20
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

21. 21
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

22. 22
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”…”

23. 23
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”

24. 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
24

25. 25
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

26. 26
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

27. USING SOCIAL MEDIA FOR GOOD

28. 28
The Hiring Process
• Dealing with publicly available information online
• Courts recognizing Facebook and similar postings not
necessarily “private”
• Don’t demand access or password

29. 29
Caution
• Risk of inaccurate information
– Wrong person
– Information is wrong
• Risk of stumbling on inappropriate information
– Race
– Age
– Disability

30. 30
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

31. 31
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

32. Employment Agreements
• Use them!
• Do it properly
• Before there’s already an agreement
• With consideration
• Explained and understood
• Independent legal advice

33. Employment Agreements
• Use to control social media usage
• Also to establish ownership of accounts
• Termination Provisions
• Post-Employment Duties

34. Termination Clauses
• Avoid uncertainty of “reasonable notice”
& reduce dismissal costs
• Use clear language
• Don’t go below employment standards
• Address benefits
• Address mitigation
34

35. 35
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

36. 36
Stuart E. Rudner
srudner@rudnermacdonald.com
416-640-6402
www.rudnermacdonald.com
Twitter: @CanadianHRLaw
LinkedIn: Connect with me, join the
Canadian HR Law Group and visit the Rudner
MacDonald Page
Blog: Canadian HR Law
http://www.hrreporter.com/blog/canadian-hr-law
Facebook: Rudner MacDonald Page
Google+: Canadian HR Law, Rudner MacDonald
Page
YouTube: Rudner MacDonald channel