Presented by David Law, Partner, Gowlings www.gowlings.com

1. Employment and Labour Law:
SEMINARS | 2015

2. Social Media and the Workplace:
Navigating in a new World
Presented By: David Law
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3. A whole new world
• Today, people live a substantial part of their lives through social
media and handheld technology
• New generations have never lived without it
• It’s a moving target: hardware and software change rapidly
• Technology is affecting behaviour and values
• There is no point in debating whether it is a “good” or “bad”
development – this is “the new normal” and there’s no going back
• We need to integrate social media into our thinking as employers
and advisers
• And we need to adopt social media as a business tool in every
way: communications, training, marketing, and beyond.
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4. Some concerns about social media as a tool
• DO think twice about whether you should encourage employees
to use social media for work-related purposes
– social networking vs. social notworking
• DON’T be mesmerized by the technology (duties of loyalty and
confidentiality are well established)
• But DO worry about the technology (data permanence, ease of
dissemination, unfettered access by third parties)
• DO educate employees about their workplace and off-duty
obligations to their employer (loyalty, confidentiality) and about
the perils of social media (defamation, violating securities laws,
etc.)
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5. Social Notworking
• Lost productivity in the $ billions
• Time theft
• More than 1 hour each day (1.8 hours for “Gen Y”)
• Only 6.8% of employees say they use social media for purely
work-related purposes
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6. Social Media as a Tool…
Recruiting/Screening
• Human rights issues
– Knowing things you shouldn’t know about the candidate, e.g. age,
race, religion, disability, etc.
o Safest approach: don’t search online (or don’t review online search
results) before making a conditional offer
• Decision-maker shouldn’t conduct the online search
• Privacy law issues
– Collecting, using and retaining personal information about candidates
(even if it’s irrelevant and doesn’t offend human rights legislation)
– Warn candidates that thorough background searches, including
online information, are conducted (in order to at least obtain their
implied consent)
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7. Social Media as a Tool…
Recruiting/Screening
• Fairness issues
– internet is unreliable
– may be limiting hiring to only those with digital presence
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8. Social Media…
Legal Risks
– Vicarious liability for employees’ wrongs committed in the
course of their duties, even if employer didn’t expressly
authorize employees’ conduct
– Defamation
o Example: trash-talking competitors in industry discussion forums
– Securities law violations (insider trading, “tipping”)
o Employee tweeting that s/he is working on a “big deal!”
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9. Social Media…
Legal Risks
– Admissions against employer’s interests
o Social media data, tweets, posts, blogs, etc. may be producible in
litigation against employer (e.g. product liability, accident, etc.)
– Disclosure of employer’s (or employer’s customers’)
confidential information
o Example: boasting about working on customer’s top secret
project
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10. The Perils of Social Media:
Duty of Confidentiality
• Employees have a duty to preserve the
confidentiality of their employer’s non-
public and proprietary business-related
information that would harm their
employer if disclosed or misused
– Lasts indefinitely
• DO identify in advance the types of
information you consider to be
“confidential”
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11. The Perils of Social Media:
Off-Duty Conduct vs. Duty of Loyalty
• Every employee owes to their employer a duty of
loyalty
– …all pervasive, residual obligation to further the interests of
the employer which is not capable of exhaustive
categorization but which can be relied upon by the courts to
compel ‘faithful’ service in a myriad of work situations….
(G. England et al., Employment Law in Canada)
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12. The Perils of Social Media:
Off-Duty Conduct vs. Duty of Loyalty
• Employees cannot disparage their employers or engage in conduct
that damages their employers’ business, even when that is done on
their personal computers and outside of working hours
– Example: Lougheed Imports Ltd. (West Coast Mazda) v. United Food
and Commercial Workers International Union
– Example: Wasaya Airways LP v. Air Line Pilots Assn., International
(Wyndels Grievance)
• Critical consideration: real versus potential harm to employer?
• Exception: legitimate whistle-blowing
– Solution: make sure employees have proper channels to raise
concerns discreetly
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13. Employer Do’s
• Educate employees about managing privacy settings.
• Explain to employees that their duty of loyalty and confidentiality
operates 24/7.
• Explain to employees that as long as they leave the company, its
products, customers, business partners, and co-workers out of
their social media activity, the company will have no interest or
say in what they do off-duty and on their own devices.
• Link the social media policy to a company’s other behavioural
policies.
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14. Employer Do’s
• Discourage employees from commenting on social media about
breaking company news or non-public information without first
obtaining approval from a designated company representative.
o Company spokespeople must be identified for employees in
advance.
• Provide employees with internal channels to vent.
• Explain to employees that they must assume that everything they
learn about their co-workers is intended to be private and cannot
be posted without their co-workers’ permission.
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15. Employer Do’s
• Require employees to report inappropriate social media activity
immediately to a designated company representative.
o However, make it clear that employees who self-report a breach
of the policy in a timely way will be treated more leniently if their
breach was inadvertent and not malicious.
• Educate employees about all of the above and get “buy in”.
o Give them “real time” examples of how companies (and by
extension their employees) have been damaged by inappropriate
social media activity.
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16. Employer Don’t’s
• Don’t assume employees understand social media.
• Don’t assume employees understand any of their legal
obligations.
• Don’t turn all employees into brand ambassadors without
educating them about appropriate messaging or the perils of
social media.
• Don’t adopt the “disclaimer” model too readily.
• Don’t turn social media activity into compensable “work”.
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17. Social Media Policies are Necessary
• Written policies are needed when employees may need help in
exercising their judgment
• Establish “bright lines” to prevent problems and to support
discipline when employees cross those lines
• Employers could do a better job of proactively explaining perils of
social media to their employees
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18. Social Media Policies …Contents
1. Explain what social media is and what types of activities the
policy intends to cover (useful to mention specific sites, but not
limit it to them)
2. Remind employees about the perils of social media (durability of
electronic information, easy access by persons outside the
workplace, etc.)
3. Explain to employees the extent to which the policy covers off-
duty social networking activity
– They may not disparage their employer or co-workers using social
media, at or outside the workplace
– They should be discouraged from discussing the workplace and
their co-workers on social media sites, even if they think they are
doing so anonymously
– They should be discouraged from identifying themselves with their
employer
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19. Social Media Policies …Contents
4. Remind employees that they may not publish any comments that
may negatively affect their employer or their employer’s
customers or business partners
5. Remind employees about their confidentiality obligations,
including identifying the types of information that, if disclosed or
misused by them, will result in their termination for just cause
6. Prohibit the violation of laws (e.g. securities laws, defamation)
7. Prohibit the violation of employer policies (e.g. harassment)
8. Prohibit the use of their employer’s logos, trade-marks, slogans,
etc.
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20. Social Media Policies …Contents
9. Prohibit speaking on behalf of their employer, especially about
anything in relation to their employer that is currently in the
news
10. If not prohibited entirely, then explain extent to which social
networking is permitted on employer’s computers and during
working hours
11. Explain any specific rules regarding the use of social media in
work-related capacities (e.g. “Friending” customers)
12. Advise employees that their use of social media while at work
will be monitored (i.e. no expectation of privacy)
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21. Social Media Policies …Contents
13. Direct employees to respect their co-workers’ privacy and warn
them about cyber-bullying
14. Advise employees of the proper channels available to them to
express workplace concerns (instead of blogging about them!)
15. Caution employees that not every violation of this policy may be
detected, so they should never assume that any questionable
behaviour has been condoned by their employer
16. Advise employees of the consequences of violating the policy
(e.g. employer will report unlawful activity to the authorities,
termination for just cause)
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22. Social Media Policies …Contents
17. Require employees to report breaches (by others and
themselves) immediately.
18. Advise employees that anonymity and use of pseudonyms will
not excuse breaches of the policy.
19. Make compliance with the policy a term of ongoing employment.
20. Include a sign-off acknowledgement page.
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23. Social Media … What to Look Forward To?
• Social networking and restrictive covenants (e.g. non-solicitation
obligations)?
• Updating employment contracts to address social media issues
– “Un-friending” customers upon termination
– Who owns the “contacts”, social media account?
• Cyber-bullying legislation
• Unionization via social media
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24. Case Law Update
• Simard Westlink Inc. v. Wallace, 2013 BCSC 2218
o warehousing business sought injunction against dismissed employee
who had posted embarrassing YouTube videos that disclosed
information about its customers and their products
• one video suggested customer’s food products were being stored
next to toxic chemicals
o permanent injunction obtained against employee for breach of
confidentiality
• Perez-Moreno v. Kulczycki, 2013 HRTO 1074
o (personal) respondent posted on Facebook that she had been
disciplined for calling applicant an ethnic slur at work
o Human Rights Code protects employees from harassment by their
co-workers via social media
o respondent ordered to take Human Rights Commission sensitivity
course
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25. Case Law Update
• Communications, Energy and Paperworkers Union of
Canada, Local 64 v. Corner Brook Pulp and Paper
Limited, 2013 CanLII 87573 (NL LA)
o dismissal of employee upheld where she posted threatening
comments and ethnic slurs on Facebook directed at supervisors
when she became frustrated with safety investigation
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26. Case Law Update
• Bell Technical Solutions v. Communications, Energy and Paperworkers Union of
Canada (Facebook Posting Grievance), 2012 OLAA No 481
o Facebook postings that ridiculed employer and supervisor
o Two employees dismissed; one dismissal upheld but other employee reinstated with
one-year suspension
• [I]t is well-established that inappropriate Facebook postings could result in
discipline or discharge, depending upon the severity of the postings. The nature
and frequency of the comments must be carefully considered to determine how
insolent, insulting, insubordinate and/or damaging they were to the individual(s)
or the company. In some cases, the issue is whether the comments were so
damaging or have so poisoned the workplace that it would no longer be possible
for the employee to work harmoniously and productively with other employees or
for the company
o Dismissal factors: Facebook postings were frequent and prolonged (more than 16
months); derogatory to employer and supervisor
o Reinstatement factors: provocation by supervisor
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27. Case Law Update
• Alberta Health Services, 2012 CanLII 12067
o Discharge for harassment via Facebook overturned where grievor
didn’t appreciate that insulting co-worker through social media could
be work-related (unpaid suspension substituted)
• Canadian Union of Postal Workers (Discharge for Facebook postings
Grievance), [2012] CLAD No 85
o Discharge for abusive comments on Facebook about manager
upheld where some of grievor’s “friends” were co-workers
• Credit Valley Hospital v. C.U.P.E., Local 3252, 2012 CarswellOnt 451
o Dismissal upheld of employee who briefly posted photos from scene
of patient suicide and comments
o Factors: breach of patient confidentiality; lack of candour
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28. Case Law Update
• Ornge, [2011] OLAA No 232
o Discharge for disclosing patient information in blog about accident
was overturned
• Blog was removed immediately, sincere remorse, and apology
provided
• Ontario (Ministry of Community and Social Services)
(Aboutaeib Grievance), [2011] OGSBA No 167
o Employer’s blog degenerated into forum for attacking management
and co-workers thanks to grievors, whose discharges were upheld
• Other factors: dishonesty when confronted, no remorse hard core
pornography, conflict of interest (personal business)
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29. Case Law Update
• Groves v. Cargojet Holdings Ltd, [2011] CLAD No 257
o Discharge overturned for grievor who posted on Facebook that she
wanted to kick lead-hand in the genitals wearing steel-toed boots
and spit in lead-hand’s face
o Factors: Facebook posts were limited to grievor’s “friends”; nothing
damaging to employer’s reputation
• Health Sciences Assn. of British Columbia (Cheema Grievance),
[2011] BCCAAA No 125
o Discharge for time theft overturned where grievor’s unauthorized use
of social media during working hours didn’t compromise workplace
performance
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30. Case Law Update
• International Union of Elevator Constructors, Local 50 v.
ThyssenKrupp Elevator (Canada) Ltd., 2011 CanLII 46585 (OLRB)
o Dismissal upheld of employee shown in video, shot during lunch
break, with genitals stapled to wooden plank posted
o Factors: employee and employer easily identified in video; employer
was engaged in safety-sensitive industry so it could not tolerate risk
to its reputation and had to deter other employees from engaging in
stunts, horseplay, pranks, etc.
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31. Case Law Update
• S.G.E.U v. Saskatchewan (Ministry of Corrections, Public Safety &
Policing), 2009 CarswellSask 913
o Dismissal of three corrections officers upheld for joining racist
Facebook group created by one of them
o Derogatory comments re compensation for First Nations victims of
residential schools who were inmates: “What could you do with at
least $28,000 in healing?”
o Factors: employees were peace officers
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32. What’s next
• LinkedIn has 347M users, 40% of whom check in daily
• Facebook this year:
• 1.9B mobile accounts, 1.44B active users, 65% of them daily, traffic peaks
mid-week between 1-3pm in most time zones
• 29.7% of users aged between 25-34
• 16M new local business accounts between May 2013 and Feb 2015
• New services like Instagram, SnapChat and a host of more
targeted social networks and services draw billions of other “hits”
• All of it consumes bandwidth and more importantly, time
• If you can’t ban it (and how can you?) then build on it
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33. montréal  ottawa  toronto  hamilton  waterloo region  calgary  vancouver  moscow  london
Thank You
David Law
Tel: (613) 783.8829
Email: david.law@gowlings.com