A look at the emerging legal trends surrounding organizational and employee use of social media.

1. 1
Osgoode Certificate in HR Law for HR Professionals
The Workplace in the Social Media Age:
Confronting the Challenges (and Opportunities)
Stuart Rudner
Rudner MacDonald LLP
Tel: +1 416 640-6402
Email: srudner@rudnermacdonald.com
Twitter: @CanadianHRLaw
Blog: http://rudnermacdonald.com/blog/
LinkedIn:
http://ca.linkedin.com/in/canadianhrlaw
Lisa Stam
Koldorf Stam LLP
Tel: +1 416 915 4193
Email: lstam@koldorfstam.ca
Twitter: @lisastam
Blog:
www.canadaemploymenthumanrightslaw.com
LinkedIn: http://ca.linkedin.com/in/lisastam

2. 2
Overview
1. Employee Expectation of Privacy: Gen Y v The World
2. The Start of a Beautiful Thing: Recruitment & Hiring
3. The Happy Marriage: BYOD & Voice of the Company
4. When Life Gets Rocky: Discipline & Termination
5. Hindsight is 20-20: Ownership of Content & Restrictive
Covenants
6. Policies, Policies, Policies

3. 1. Employee Expectations
of Privacy:
Gen Y v The World

4. 4
Expectations of Privacy: Gen Y v The World
– Generation Y on Privacy: “We live in public”
– Cisco’s 2013 “Connected World Technology Report” found
that 91 percent of Gen Y employees believe that the age of
privacy is over
– Blending of Personal/Professional lines
– Social Media Law: no clean lines left between
employment, intellectual property, IT, online marketing,
litigation evidence, privacy, etc.

5. Developments in Workplace Privacy Law
Two big privacy law cases in 2012:
– R. v. Cole (Supreme Court of Canada)
– Jones v. Tsige (Ontario Court of Appeal)
5

6. Developments in Workplace Privacy Law
R. v. Cole - Facts
– High school teacher was issued a laptop computer for
incidental personal use
– Technician discovered a hidden folder on laptop while
performing maintenance activities
– Folder contained nude photographs of a female student
– Principal seized laptop and turned it over to police
– Cole charged with possession of child pornography
– Cole claimed he was subjected to “unreasonable search
and seizure” contrary to his Charter rights
6

7. Developments in Workplace Privacy Law
R. v. Cole - Decision
– Cole had a reasonable expectation of privacy in his
employer-issued work computer
– SCC ruled that the “totality of the circumstances” must be
considered when considering the scope of an empoyee’s
right to privacy:
– Ownership rights in electronic devices
– Contents of computer-use policies
– Employee awareness of contents of policies
– Workplace practices
7

8. Developments in Workplace Privacy Law
R. v. Cole – Lessons for Employers
– Employees have an expectation of privacy in the
workplace but that expectation can be diminished
– Policies must:
– set out terms of use;
– be clearly communicated;
– be consistently enforced; and
– reflect current practices in the workplace
8

9. Developments in Workplace Privacy Law
Jones v. Tsige – Facts
– Sandra Jones and Winnie Tsige worked at different
branches for the same bank
– Over four years, Tsige used her workplace computer to
access Jones’ personal bank accounts on at least 174
occasions
– Investigation; Tsige apologizes and is given a one-week
suspension and is denied a bonus
– Jones sues for invasion of privacy
9

10. Developments in Workplace Privacy Law
Jones v. Tsige – Decision
– Tort of Invasion of Privacy (“intrusion upon seclusion”)
– Defendant’s conduct must be intentional
– Defendant must have invaded, without lawful
justification, the Plaintiff’s private affairs or concerns
– Reasonable person would regard the invasion as highly
offensive causing distress, humiliation or anguish
– Jones awarded $10,000 in damages; Court fixed upper
limit for damages at $20,000
10

11. Developments in Workplace Privacy Law
Jones v. Tsige – Lessons for Employers
– Employers responsible for acts of employees for privacy
breach – personal life meets professional life
– Training and Policies
– Always consider reasons for undertaking electronic
monitoring and communicate to employees before
implementing
11

12. 2. The Start of a Beautiful
Thing:
Recruitment & Hiring

13. Social Media Background Checks
– 2012 Survey by CareerBuilder of 2,303 Hiring Managers
and human resources professionals
– 37% of employers use social networking sites to
research job candidates
– #1 thing that hiring managers are looking for during
social media background check: “To see if the candidate
presents himself/herself professionally”
– Where are hiring managers looking:
– Facebook (65%); LinkedIn (63%); Twitter (16%)
13

14. 14
Would you hire this man?

15. Social Media Background Checks - Concerns
– Is the information accurate?
– Is the information current?
– Is the information relevant?
15

16. Social Media Background Checks – Human
Rights
– Social media background check is likely to reveal
information about one or more of the candidate’s
characteristics protected by the Human Rights Code
– From the Ontario Human Rights Commission:
“the OHRC believes employers should not ask job
applicants for access to information stored on social media
or other online sites and that doing so could leave an
employer open to a claim of discrimination under the
Code.”
16

17. Social Media Background Checks – Lessons
for Employers
– If you are going to conduct such a search, only conduct it
after you have made a conditional offer of employment
– Obtain employee’s consent
– Do not ask for passwords
– Limit the search and document what information you
find/consider in your decision
17

18. 18
Caution
• Risk of stumbling on inappropriate information
– Race
– Age
– Disability
– Family Status

19. 19
Mitigating Risks
–Only conduct search after making conditional offer
–Obtain employee’s consent?
–Do not ask for passwords / Require login in front of
you
–Limit the search and document what information
you find/consider in your decision

20. • Have protocol for every applicant
• Have non-decision maker filter out inappropriate info
• Log reasons for hiring and not hiring
20

21. 3. The Happy Marriage:
BYOD & Voice of the
Company

22. BYOD: Expanding the 9-5 Workday
– Bring Your Own Device will become the norm in a few
years
– Reflects intersection between personal and private lives
online
– Connecting own device to company server intermingles
personal and private, particularly with smart phones and
tablets
22

23. BYOD Benefits
– Employee engagement and retention
– Client optics
– Increased productivity
– Collaboration
– Company cost savings
23

24. BYOD Risks
– Privacy – must educate employees that they give away
some privacy when plugging into the employer’s systems
– General system security and cost issues
– What if employee loses device (and data)?
– Cost and resources to recover data and investigate loss
– More acute in confidential environments like health care
24

25. BYOD Risks
– Overtime Exposure – what is after hours “work”?
– Responding to email?
– Updating social media profiles?
– Making connections for the company on LinkedIn?
– Networking with colleagues through Twitter?
25

26. Voice of the Company
– Who can speak/write on behalf of the company?
– Consider:
– Day to day customer engagement
– LinkedIn Recommendations
– Informal endorsements with friends on Facebook
– Informal endorsements with public
– Speaking for company during an online PR crisis
– Venting & defamation
26

27. Impact of Senior Executive Voices
– Netflix CEO, Reed Hastings, posted on his personal
Facebook page on July 3, 2012:
27

28. Impact of Senior Executive Voices (con’t)
– Netflix had never before used Hastings Facebook for
company financial announcements
– Because the Netflix stock jumped 6% the same day, the
US Securities and Exchange Commission (SEC) sent
Hastings a Wells Notice
– US & Canada securities law require equal disclosure of
key company information to all investors – and not all
investors are “followers” of Hastings Facebook page
28

29. Impact of Senior Executive Voices (con’t)
– SEC released report on April 2, 2013 on use of social
media for key company information:
– Companies can use social media outlets to announce
key information in compliance with Regulation Fair
Disclosure so long as investors have been alerted about
which social media will be used to disseminate such
information
– No enforcement action or allege wrongdoing against
Hastings or Netflix because of then uncertainty around
use of social media and fair disclosure
29

30. Impact of Senior Executive Voices (con’t)
– BUT CANADA IS A DIFFERENT COUNTRY
– Canadian National Policy 51-201 Disclosure Standards
require dissemination by (i) press release; or (ii) press
conference with specified notice
– Social media is likely NOT an acceptable channel yet
– Lesson for Employers:
– Don’t post or tweet key company information
– Easy to do: Netflix CEO was simply congratulating an
employee
30

31. 4. When Life Gets Rocky:
Discipline & Termination

32. Discipline and Termination
2009 Deloitte Survey - 15% of employees would comment
online about a decision made by their employer if they
didn’t agree with it
32

33. Employees Gone Wild
33

34. 34
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

35. Discipline and Termination – Case Law
Examples
– Chatham-Kent (Municipality) v. National Automobile,
Aerospace, Transportation and General Workers Union of
Canada (CAW-Canada), Local 127 (Clarke Grievance)
 Grievor was a personal care giver at a home for the aged
 Published resident information and pictures without resident consent on
personal blog
 Made inappropriate comments about residents in her care
 Expressed her displeasure with some of the decisions made by
management who she identified by first name and initials
 Result: Discharge Upheld
35

36. Discipline and Termination – Case Law
Examples
– Lougheed Imports Ltd. (c.o.b. West Coast Mazda) v. UFCW
Local 1518)
 Grievors were employees of an auto detailing and accessory shop
 Both had Facebook accounts – J.T. had almost 100 friends; A.P. had 377
friends although he subsequently deleted his account.
 Over a period of several months, J.T. and A.P. began posting derogatory
comments about their employer on their Facebook page. Posts used
coarse language and suggested that auto shop’s employees were engaged
in unlawful business practices
36

37. • 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
 Employer convened a meeting with the Grievors and a Union
Representative –Grievors denied making derogatory posts; one of
Grievors suggested his account had been hacked
 Result: Discharge Upheld
37

38. Discipline and Termination – Case Law
Examples
– Wasaya Airways LP v. Air Line Pilots Assn., International
(Wyndels Grievance)
 Company owned by First Nations with clientele made up predominately of
First Nations people
 Pilot posted a list of derogatory comments about First Nations people on
his Facebook page titled “You know you fly in the north when…”
 The Facebook post did not identify the Grievor’s employer nor that he is an
employee
 Grievor apologized for actions
 Result: Grievor suspended for four months and then ordered to
resign.
38

39. 39
FaceBook post:
“have to work this
weekend because our
new products failed
initial tests”

40. 40
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?

41. Discipline and Termination – Case Law
Examples
– EV Logistics v. Retail Wholesale Union, Local 580
 Employer received an anonymous email from an employee concerned
about the content of a blog that belonged to another employee
 Blog contained a number of pictures and statements endorsing Nazi
Germany
 Blog referenced the employer’s name and included pictures of the Grievor
at work
 Grievor apologized and withdrew all entries from his blog
 Result: Grievor reinstated.
41

42. 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.”
42

43. 43
• 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?

44. 44
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

45. Discipline and Termination – Lessons for
Employers
– Employers must continue to take a contextual approach
when considering employee discipline or termination
– Off-Duty Conduct can support employee discipline or
discharge
– Does the conduct harm the company’s reputation or product?
– Does the conduct render the employee unable to perform his or her duties
satisfactorily?
– Does the conduct lead to refusal, reluctance or inability of other employees to work
with the other employee?
– Does the conduct represent a breach of the Criminal Code?
– Does the conduct hinder the company in managing its workplace and directing its
workforce?
45

46. 46
“Cyberslacking”
• Staff with FaceBook open all day
• Hours & hours online
• Talking and texting on personal cell phone while
at work

47. 47
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”

48. 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
48

49. 49
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

50. 50
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

51. 5. Hindsight is 20-20:
Ownership of Content &
Restrictive Covenants

52. Social Media Content
Risks: Who owns the Social Media content?
– if material written in the course of employment, does the employer
own the content?
– but what about material drafted on device after hours?
– are connections, followers and fans made because of individual
personality or a company’s good name?
– can you commodify prospects and relationships?
– is this the same as a Rolodex, or simply your telephone contacts?
52

53. @Phonedog_Noah
Risks: Who owns the Social Media content?
-@Phonedog_Noah
–former employer sued Noah for $2.50 per follower
–Parties settled Dec 2012
–Take-Away: don’t mix business and pleasure
53

54. Eagle Case
– Eagle v Edcomm et al
– Company fired Dr. Eagle, changed her LinkedIn
password, replaced photo and most but not all
content, and did not change Eagle URL for about 3
weeks
54

55. LinkedIn Content
Eagle v Edcomm et al – LinkedIn Content
–On March 12, 2013, court found against company:
1) unauthorized use of name
2) intrusion upon seclusion by appropriation of identity
3) tort of misappropriation of publicity
–BUT:
– Dr. Eagle did not prove any damages, so awarded $0
55

56. Don’t Fire The Twitter Guy
56

57. Takeaways
– US case, so not a direct precedent, but persuasive
– US tort of instruction upon seclusion now the law in Ontario
– LinkedIn’s purpose is to develop business – watch for
litigation as its value as a business tool continues to
increase
57

58. Takeaways (con’t)
– LinkedIn terms between the individual and LinkedIn only,
which will help employees claiming ownership
– LinkedIn often updated and maintained after hours
– what about updates for my next position or general
personal career development?
58

59. Restrictive Covenants
– Confidentiality Agreements:
– Define company electronic and online property
– Prohibit removal of electronic information during employment (e.g.
USB keys, email to personal accounts, posting and sharing online,
installing file sharing programs)
– Termination protocol for returning information and passwords
– Prohibit disclosure of company information after employment
– Put positive obligation on employee to protect and not disclose
company confidential information
59

60. Restrictive Covenants
– Non-Competition Agreements
– Who owns what online content?
– What can employee take with them?
– Have termination protocol to retain and protect company information
– Ensure back up of passwords and access codes of company social
media accounts
60

61. Restrictive Covenants
– Non-Solicitation Agreements
– Prohibit soliciting employees and clients to new employer
– Define what is “soliciting” employees through social media
– Define who is a “client” (Connection? Friend? Follower?
Subscriber?)
– Do not be overly broad
– Articulate who brought what relationships in upon hiring
– For more senior positions, articulate when former employee can
announce departure on social media
61

62. 6. Policies, Policies
Policies

63. 63
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

64. 64
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

65. 65
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”…”

66. Tips for Effective Policies
Policies should speak to:
– Rights and responsibilities regarding use
– To what extent can employees use social media while
at work?
– Diminished expectations of privacy
– Monitoring
– Ownership of work-related content
– Standards for posting
– Public company considerations
66

67. Tips for Effective Policies (con’t)
Policies should speak to:
– BYOD issues
– Overtime – articulate expectations of device usage after
hours, especially for non-management
– Harmony with other policies (harassment, discrimination,
privacy, IP, confidential information, etc.)
– Clear consequences for breaches of policy
– Off-Duty and On-Duty conduct
67

68. Tips for Effective Policies (con’t)
Policies should speak to:
– Data backup
– Security requirements
• passwords
• monitoring
• remote wiping
– Lost device and data breach notification
– Termination protocol and checklist
68

69. Questions?
Thank you.
69
Stuart Rudner
Rudner MacDonald LLP
Tel: +1 416 640-6402
Email: srudner@rudnermacdonald.com
Twitter: @CanadianHRLaw
Blog: http://rudnermacdonald.com/blog/
LinkedIn:
http://ca.linkedin.com/in/canadianhrlaw
Lisa Stam
Koldorf Stam LLP
Tel: +1 416 915 4193
Email: lstam@koldorfstam.ca
Twitter: @lisastam
Blog:
www.canadaemploymenthumanrightslaw.com
LinkedIn: http://ca.linkedin.com/in/lisastam