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Employment and Labour Seminar 2013: The Perils and Promises of Social Media


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Employment and Labour Seminar 2013: The Perils and Promises of Social Media

  1. 1. P.A. Neena GuptaGowling Lafleur Henderson LLPApril 17, 2013The Promise and Perils ofSocial Media
  2. 2. The World is a very Social Place
  3. 3. Social Media LandscapeSocial Media ExplainedLinkedin – My skills include eating donutsFacebook – I like donutsFourSquare – This is where I eat donutsInstagram – Here’s a vintage photo of my donutPinterest – Here’s a donut recipeTwitter – I’m eating a donutInstagram – here’s a picture of me eating a donutYouTube - here I am, eating a donutG+ - I’m a Google employee who eats donuts developed by Douglas Wray
  4. 4. The Opportunity• Create awareness of business• Communicate with clients• Communicate internally with employees• Cost-effective, customized and creative
  5. 5. The Perils of Social Media“A click of a button is all ittakes to ruinsomebody’s life”Attorney Ed Vasquez, lawyer for the family of Audrie Pott,who allegedly committed suicide after she was sexually assaulted while intoxicatedand pictures of the assault were circulated on the internetInterview, CBC Radio, As it Happens, Friday, April 12, 2013
  6. 6. Generational divide – no societal consensus• Traditionalists –– What is personal is private– Implied obligation to keep confidences secret and confidential– In the era of Mad Men,o People had affairs and tried to keep it quiet• Generation X, Y and I (internet)– What is private is public– Sex, Lies and Videotape (1989)– Weinergate (2011) – Congressman tweets sexually-explicitphotos of himself and lies about it– Young people brag about their sex lives with real timephotographs
  7. 7. Generational Divide –no societal consensus• Old:– Magician’s Code of Honor:o Never reveal how it a trick is actually performedo International Brotherhood of Magicians enforced codeo Effectively, union shop• New:– “Magic’s Biggest Secrets Finally Revealed”o Network TVo YouTube
  8. 8. The Law is playing “catchup” with traditional tools• Libel and slander– A tort to spread untrue information– What about opinion?– What about truthful information that is negative• Privacy– On January 20, 2012, the Ontario Court of Appeal recognizedU.S. concept of Intrusion upon seclusion; Jones v. Tsige• Human Rights– Use of social media inevitably discloses information about“protected grounds”– Awkward tool to deal with new media• Labor Rights– overly restrictive policies may offend labour laws
  9. 9. The law is playing “catchup” with traditional tools• Confidentiality– A business owns its confidential information and can takelegitimate steps to protect it– Is it confidential when “it’s all over YouTube”, Twittr,Facebook?– Think about the media frenzy when Princess Catherine (KateMiddleton) admitted to hospital• Intellectual Property (copyright, trademark)– A business owns the right to its work product• Contract– A business has the right to stipulate the terms and conditionsof business (including employment)
  10. 10. The End of Privacy?• The End of Privacy (New York Times, SR 10, July 14,2012)– We are digitally monitored all the timeo Locational data on smartphones/blackberries/cellphoneso IPS and service providers have copies of txts, emails and datausage• Nothing is forgotten – it’s all cached somewhere
  11. 11. The End of Privacy?• Simple searches can bring up information:– Youthful indiscretions– Marital infidelity– Ethnic and religious affiliations– Marital status– Political activity– Union activity
  12. 12. Canadian law just developing• Privacy Commissioners of Alberta, Quebec and Canada (federal) haveall discouraged use of social media as part of background check• If business governed by federal Canadian law (inter-provincialtransportation) or by Alberta/Quebec law, company must have writtenconsent by candidate or employee before doing social media searchesand can only review and retain relevant data• Consent may be revoked at any time• Law unclear in balance of provinces: best practice … get writtenconsent
  13. 13. Canadian law just developing• Privacy Commissioners have each issued bulletins oropinions regarding social media in the workplace– Canada: Privacy and Social Networks in the Workplaceo– Alberta & BC both have indicated that social mediabackground checks generally not “reasonable” in the privatesector; if conducted, specific methods to review/retainrequiredGuidelines for Social Media Background Checks, Office of the Information andPrivacy Commissioner (BC, October 2011 and Alberta, December 2011)
  14. 14. Social Media– Recruitment• 77% of employers search online to do background checks– Effective, detailed background checks critical to screening out liars,candidates who have exaggerated their job title and skill set• Should you “google” a candidate? Should you check their publicprofile on “Facebook”– Cons: knowing things you shouldn’t know about the candidate, e.g.age, race, sexual orientation, religion, disability, etc.– Need to consider federal (Canada), Alberta or BC guidelines– Proso learning about issues you should know about that are not caught instandard background checkso Avoiding embarrassment of learning after hire that candidate underinvestigation for fraud, sexual harassment, involvement with motor cyclegang
  15. 15. Social Media -- Recruitment• Best Practice– Check internet profile of candidates that have been shortlistedand are “serious” contenders– Obtain written consent to background search– Have someone other than the final decision-maker(s) screenout irrelevant information– Have decision-maker review only relevant information – i.e.relevant to the job itself and not just irrelevant gossip– Create retention policy/disposal of data policy– Consider applicability of Canadian, Alberta & BC guidelines
  16. 16. Recruitment -- Passwords• What about asking for Facebook password orpasswords to other sites?• Requires breach of Facebook user agreement• Most sites require that user keep passwordconfidential
  17. 17. Recruitment -- Passwords• OHRC issued a press release indicating its belief thatpassword requests violates Human Rights law• Strong potential that it reveals information that isirrelevant and that is illegal to ask in interview process,e.g. age, marital status, religion, family status• likely violates BC, Alberta and Canadian privacy laws(because it requires more information than necessary0• No binding case law in this regard• Some legislative efforts considered
  18. 18. Reputational Management• Companies need to manage their reputation• Monitor social media activity about their company• Learn what their contractors, employees, customerssay about them• Legal tools such as cease and desist letters,injunctions and law suits apply to social media, butcan be difficult in this brave, new anonymous world• Contacting U.S. service providers online often getsvirtually instant response from in-house legal team
  19. 19. Social Media – The Future is Now• Social networking and restrictive covenants (e.g. non-solicitation obligations)?– Linkedin contents – one status update advises the employee’suniverse of where employee now works … is that a form ofsolicitation?• updating employment contracts to address socialmedia issues– Requiring employee to “unfriend” customers upon termination– who owns the “contacts”, social media account?– Linkedin recommendations• unionization via social media?
  20. 20. How are the courts responding to social media?• Employee posted negative and threatening commentson her Facebook page about her supervisor– Wanted to kick supervisor in “genitalia”– Wanted to spit in leadhand’s face– Insulted co-workers• No policy in the workplace• Disseminated only to “friends”• Finding that it did not damage employer’s business• 1 month’s suspension:
  21. 21. Examples of trash talking that went too far• Unionized employee at West Coast Mazda (LougheedImports), 2010 BCLRB B/190o Company “ripped off” peopleo “crooks” and “greedy”o Critical of employer’s products and recommended going to acompetitoro Allusions to violence and vengeance against ownero Girlfriend even warns not to post on Facebook, but response:“that’s the whole point, honey”• Discharge upheld, but another factor was lack ofcandor during investigation• Facebook account “hacked”
  22. 22. Examples of trash talking that went too far• Unionized pilot for Wasaya Airways (First Nationsairline)• Postings derogatory of– First Nations customers and owners– Employer’s name not mentioned on Facebook (but easy todetermine• Pilot married to First Nations individual and found notto be “racist”• Contrary to policy• Discharged … ultimately given 4 months’ pay, butreinstatement not ordered
  23. 23. Social Media in Labour Cases• Ontario (Ministry of Community and Social Services)(Aboutaeib Grievance), [2011] OGSBA No 167o employer’s blog degenerated into forum for attacking managementand co-workers thanks to grievors, whose discharges were upheld• Other factors: dishonesty when confronted, no remorse hard corepornography, conflict of interest (personal business), existence of policy• Groves v Cargojet Holdings Ltd, [2011] CLAD No 257o discharge overturned for grievor who posted on Facebook that shewanted to kick lead-hand in the genitals wearing steel-toed bootsand spit in lead-hand’s faceo factors: Facebook posts were limited to grievor’s “friends”; nothingdamaging to employer’s reputation, no policy
  24. 24. Social Media in Labour Law• Health Sciences Assn. of British Columbia (CheemaGrievance), [2011] BCCAAA No 125o discharge for time theft overturned where grievor’s unauthorized useof social media during working hours didn’t compromise workplaceperformance; allegedly frittered way 266/790 hours of work time;suspended without pay for 15 days• Alberta Health Services, 2012 CanLII 12067o discharge for harassment via Facebook overturned where grievordidn’t appreciate that insulting co-worker through social media couldbe work-related (unpaid suspension for 15 days substituted)o Need for education
  25. 25. Social Media in Labour Law• Canadian Union of Postal Workers (Discharge forFacebook postings Grievance), [2012] CLAD No 85o Drinking and textingo discharge for abusive comments on Facebook about managerupheld where some of grievor’s “friends” were co-workerso Used vile and profane language about two supervisorso Showed open disrespect of Canada post and her managerso Both supervisors went on temporary stress leave and both werere-assigned to different depotso Showed little or no remorseo Many Facebook friends current and former Canada Postemployees
  26. 26. Why you need a social media policy“Many subscribers, in particular youngpersons, regarding Facebook as conductengaged in on personal time, unconnected tothe workplace, analogous to sharing a beerwith colleagues and friends, or gettingtogether with friends to confide details abouttheir jobs.”Arbitral Decision
  27. 27. Social Media Policies are Crucial• Written policies educate employees may need help inexercising their judgment• Clarify rules of the workplace and supportdiscipline/termination when employees cross thoselines• Explains perils of social media to employees• Rebuts presumption that employee “didn’tunderstand”, “acted without malice”, “young”, “didn’tunderstand public”, “thought limited to friends”
  28. 28. Social Media Policies are Crucial1. Explain what social media is and what types of activitiesthe policy intends to cover (useful to mention specificsites, but not limit it to them)2. Remind employees about the perils of social media(durability of electronic information, easy access bypersons outside the workplace, lasts forever, etc.)
  29. 29. Social Media Policies are Crucial3. Explain to employees the extent to which the policy coversoff-duty social networking activity– they may not disparage their employer or co-workers using socialmedia, at or outside the workplace– they should be discouraged from discussing the workplace and theirco-workers on social media sites, even if they think they are doingso anonymously– they should be discouraged from identifying themselves with theiremployer
  30. 30. Social Media Policies are Crucial4. Remind employees that they may not publish anycomments that may negatively affect their employer ortheir employer’s customers or business partners5. Remind employees about their confidentiality obligations,including identifying the types of information that, ifdisclosed or misused by them, will result in theirtermination for just cause6. Prohibit the violation of laws (e.g. securities laws,defamation, misuse of trademark or copyright).
  31. 31. Social Media Policies are Crucial7. Prohibit the violation of employer policies (e.g.harassment)8. Prohibit the use of their employer’s logos, trade-marks,slogans, etc.
  32. 32. Social Media Policies are Crucial9. Prohibit speaking on behalf of their employer, especiallyabout anything in relation to their employer that iscurrently in the news10. If not prohibited entirely, then explain extent to whichsocial networking is permitted on employer’s computersand during working hours11. Explain any specific rules regarding the use of socialmedia in work-related capacities (e.g. “Friending”customers, Linkedin profile, providing recommendationson Linkedin)12. Advise employees that their use of social media while atwork will be monitored (i.e. no expectation of privacy)
  33. 33. Social Media Policies are Crucial13. Advise employees of the proper channels available tothem to express workplace concerns (instead of bloggingabout them!)14. Caution employees that not every violation of this policymay be detected, so they should never assume that anyquestionable behaviour has been condoned by theiremployer15. Advise employees of the consequences of violating thepolicy (e.g. employer will report unlawful activity to theauthorities, termination for just cause)16. TRAIN YOUR EMPLOYEES – MAKE SURE THEYUNDERSTAND THE RISKS AND OPPORTUNITIES OFSOCIAL MEDIA
  34. 34. montréal • ottawa • toronto • hamilton • waterloo region • calgary • vancouver • moscow • londonThank YouP.A. Neena GuptaTel: (416) 862.5700/519.575.7501Email: