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Managing Employees in the Social Media Era

Stuart Rudner discusses managing employees and social media use in the workplace.

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Managing Employees in the Social Media Era

  1. 1. AGF Investments December 6, 2013 Toronto Presented by Stuart E. Rudner Managing Employees in the Social Media Era
  2. 2. 2 Why Should We Be Concerned About Misuse? • Lost productivity • Corporate liability – Harassment • Damaged reputation – Lost customers – Lost shareholders – Share devaluation • Ownership of Social Media Accounts
  3. 3. 3 Why Should We Be Concerned About Misuse? (cont’d) • Not just “desktop issue” – Laptops – iPads – Smartphones • 24/7 • On duty • Off duty
  4. 4. 4 “Cyberslacking” • Staff with FaceBook open all day • Hours & hours online • Talking and texting on personal cell phone while at work
  5. 5. 5 Reputation • 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?
  6. 6. 6 FaceBook post: “have to work this weekend because our new products failed initial tests”
  7. 7. 7 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?”
  8. 8. Recent Incidents  OHL Ref: “Soo Saint Marie, two words, Slim Pickens. #noteeth #hicktown #allfaties."  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.” 8
  9. 9. 9 Online Recommendations • Employee dismissed for cause based on poor performance • Manager gave him recommendation on LinkedIn the week before dismissal • Now suing for wrongful dismissal
  10. 10. 10 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
  11. 11. 11 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
  12. 12. 12 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”…”
  13. 13. Employment Agreements  Use to set control social media usage  Also to establish ownership of accounts  Do it properly – Before there’s already an agreement  Maintain control over accounts
  14. 14. 14 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
  15. 15. 15 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
  16. 16. 16 Dismissals  2 types: With cause or without cause  If with cause, no further obligation to employee  Otherwise, need to assess employee’s entitlements to notice/pay in lieu/severance  No “near cause”
  17. 17. 17 Without Just Cause  Notice of Dismissal or Pay in Lieu  Two sources of entitlement – Employment Standards Act / Canada Labour Code – Common Law  Can contract out of common law
  18. 18. 18 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”
  19. 19. 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 19
  20. 20. Can you Discipline for Off-Duty Conduct?  Generally, what you do on your time is your business  Unless – 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.
  21. 21. 21 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
  22. 22. 22 Social Media 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
  23. 23. 23 Stuart E. Rudner 647.255.3100 Twitter: @CanadianHRLaw LinkedIn: Connect with me, join the Canadian HR Law Group and visit the Rudner MacDonald Page Blog: Canadian HR Law FaceBook: Rudner MacDonald Page Google+: Canadian HR Law, Rudner MacDonald Page YouTube: Rudner MacDonald channel