Tips for managing employee use of social media at work, and how to develop a solid workplace policy on this usage to pre-empt complicated modern work situations.

1. OBA
March 25, 2014
Toronto
Presented by
Stuart E. Rudner
Managing the Discontented Employee

2. Intro
 I use social media personally &
professionally
 Know of what I speak
 Work with clients to proactively deal with
issues and also put out fires
2

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

5. 5
FaceBook post:
“have to work this weekend because our new
products failed initial tests”

6. 6
• Lougheed Imports Ltd (West Coast Mazda) v.
UFCS Local 1518 (2010)
– employees fired for postings on Facebook
– posting included homophobic slurs and threats online
against bosses
– “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”

7. Recent Incidents
 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.”
7

8. 8
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”…”

9. 9
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”

10. 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
10

11. 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.

12. 12
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

13. Employment Agreements
 Basic Checklist (cont’d):
– Hours of work
– Vacation / holidays
– Dress code
– Conflict of interest
– Expenses
– Social Media

14. 14
Stuart E. Rudner
srudner@rudnermacdonald.com
647.255.3100
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