#SOCIALMEDIA AND
YOUR WORKPLACE
PRESENTED BY:
RUTH TRASK
© 2013 Stewart McKelvey. All rights reserved. Not to be copied or used in whole or in part without the express written consent of Stewart McKelvey
INTRODUCTION
• Social networking sites have blurred the line between
employee’s personal life and employer’s business
interests.
• Information can be uploaded and broadcast
instantaneously to wide number of “friends”,
acquaintances and strangers.
• Frequently seeing employment-related cases stemming
from social media use.
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SOCIAL MEDIA AFFECTS
YOUR WORKPLACE
• For employers, the social networking concern is twofold:
(i) employees post content without considering
employment implications; and (ii) the proliferation and
exponential reach of social networking.
• Idea that “the Internet is forever”, particularly if
information is re-circulated and re-posted.
• Potential to reach a global audience at virtually no cost
to users.
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SOCIAL MEDIA AFFECTS
YOUR WORKPLACE
• Short communications, often made on the spur of the
moment, are vulnerable to misunderstandings, and can
result from a brief moment of poor judgment.
• Like other forms of communication, electronic posts can
be harassing, discriminatory, or defamatory.
• When employees are tweeting or sharing status updates,
they’re not working.
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OVERVIEW
• Checking up on new employees: Privacy and Pre-hiring
• How does social media impact the workplace? Case
discussion
• Policy, policy, policy (we can’t say it enough)
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PRE-EMPLOYMENT
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PRE-EMPLOYMENT
Pre-Employment and Hiring Checks
• Users have no reasonable expectation of privacy over
content they upload to a social networking site
(Lougheed Imports, 2010: BCLRB, Canada Post, 2012:
CLAD).
• No prohibition on using Google or social media to gather
information for purpose of pre-employment or
background checks.
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PRE-EMPLOYMENT
Human Rights
• General Rule: Do not use any information gathered in
pre-employment period in a manner inconsistent with
human rights legislation (i.e., race, religion, disability).
• No discrimination based on prior, unrelated conviction of
a criminal offence.
• Cannot make hiring decision based on any protected
human rights characteristic.
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PRIVACY
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PRIVACY
R v. Cole (2012 SCC)
• Teacher had work-issued laptop on which was stored
child pornography.
• Reasonable expectation of privacy in hard drive of laptop
given employee’s permitted personal use of system.
• Employer policy was permissive as to personal use.
• But, laptop issued for a work-related purpose as part of
an integrated business information system.
• Employers may have an interest in monitoring network
activity and computer contents, including for safety and
security reasons.
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DISCIPLINE – THREATENING
AND DEROGATORY COMMENTS
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DISCIPLINE – THREATENING
AND DEROGATORY COMMENTS
• Employees are accountable for Facebook comments,
blogs, or tweets that are threatening, derogatory or that
violate company policies.
• In non-unionized context, issue is whether comments or
policy breach has left the relationship irreconcilable.
• In unionized context, issue is whether there are
mitigating factors.
• Are the comments “connected to” the workplace?
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THREATENING AND
DEROGATORY COMMENTS
Canada Post (2012: CLAD)
• Postal clerk, 31 years’ service, fired after postings (made
over a month) that were derogatory and mocking
statements about supervisors and the employer.
• Grievance dismissed. Facebook postings were abusive,
intimidating, mocking, and widely accessible.
• Comments had potential to harm employer AND had
greatly harmed the supervisors. Two targeted
supervisors suffered from emotional distress.
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ABUSE OF SICK LEAVE
Teck Coal (2010: AGA)
• Grievor dismissed for absenteeism and abuse of sick
leave.
• Employee advised employer he was too sick to work but,
at the same time, posted Facebook comment:
• “In the City and ready to party”
• Arbitrator found that employee was abusing sick leave.
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EMPLOYER
EQUIPMENT
Sheridan College v OPSEU (2010 ONARB)
• IT employee grieved termination for unauthorized,
inappropriate use of employer’s computer network.
• After termination, employee posted photo to Facebook
page showing rear end of rock climber, with a comment
to the effect that his supervisor should “kiss this”.
• Employee removed the photo that same day.
• Employee had allowed unauthorized users to access
network, and lied during the investigation.
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EMPLOYER
EQUIPMENT
Sheridan College v OPSEU (2010 ONARB)
• Arbitrator found that employee did not have a reasonable
expectation of privacy.
• Policy clearly stated that an employee’s IT activities
could be monitored, and the employee made no attempt
to hide his activities.
• Importance of policy governing appropriate use of
computer resources, which are necessary to carry out
job functions.
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WORKPLACE
HARASSMENT
Alberta Union of Provincial Employees (2012: AGAA)
• Grievor was regular PT clerical employee who was fired
for improperly touching a co-worker and posting
harassing messages on Facebook.
• Termination followed earlier 5-day suspension for ‘sexual
harassment’.
• Grievor unable to concede certain facts or admit
anything, categorically denied behaviour was
blameworthy.
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WORKPLACE
HARASSMENT
Alberta Union of Provincial Employees (2012: AGAA)
• What do you think?
• Postings made while at work.
• Employer had “harassment policy”.
• Grievor allegedly struck co-worker on buttocks and, after
co-worker complained, lengthy exchange of Facebook
communications in which grievor talked about coworker’s appearance and marital status.
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WORKPLACE
HARASSMENT
Alberta Union of Provincial Employees (2012: AGAA)
• Board characterized this as “workplace foolishness” and
found discharge too excessive.
• 2 and 1/3 year suspension.
• Reinstated “to employment”, not to previous job.
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WORKPLACE
HARASSMENT
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BREACH OF POLICY
Credit Valley Hospital (2012: OLAA)
• Adolescent outpatient jumped to his death from
employer’s multilevel parking garage.
• Grievor, assigned to assist scene cleanup, took pictures
with his cell phone, and posted them on his Facebook
page with a caption under each picture.
• “this is what I have to clean up”
• “Mother pleads with kid not to jump..but did anyways …”
• Grievor discharged for breaching confidentiality of
patient, employee and corporate information.
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BREACH OF POLICY
Credit Valley Hospital (2012: OLAA)
• Signed off on confidentiality policy at time of hire.
• During investigation, he denied posting on Facebook,
and said he didn’t know whether the deceased was a
patient.
• What do you think?
• Arbitrator thought that employee ought to have exercised
greater caution and diligence.
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BREACH OF POLICY
Credit Valley Hospital (2012: OLAA)
• “In my view, the Hospital’s Policy and Code clearly apply
to [the grievor’s] actions, which must be viewed in their
totality. He posted two pictures on his Facebook page of
the scene with comments about the patient’s suicide on
Hospital property that others viewed. By so doing, [the
grievor] has publicized and disseminated confidential
patient information on the Internet about this most tragic
event”.
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YOU NEED A POLICY!
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YOU NEED A POLICY!
• Without a policy, discipline does not usually “stick”.
• A policy addressing social networking commentary,
which is continuously updated and modified as new
forms of social media develop.
• That policy, and consistent enforcement, is not foolproof,
but will help support discipline.
• Maintain flexibility for work-related social media use, if
needed.
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YOU NEED A POLICY!
• Employees can participate in social network activities on
their own time.
• Define acceptable versus unacceptable activities.
• Social networking must not interfere with work duties.
• Employees must make it clear that their personal views
are theirs alone and do not represent the views of their
employer.
• Integrate with workplace bullying policy.
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YOU NEED A POLICY!
• Strike a balance between need to monitor versus
allowing employee freedom to perform job functions.
• After the decision in Cole, be clear if your intention is to
preserve your access to information stored on
employees’ work computers.
• Ensure that you are prepared to enforce your policy.
• A policy that goes ignored day-to-day is not likely to be
enforced by an arbitrator.
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YOU NEED A POLICY!
• Employees must respect confidential and proprietary
information including logos, copyrighted material, or
registered trademarks.
• Make it clear that discipline or termination may result
from violating the policy.
• Review with employee and have them acknowledge by
their signature.
• Train managers.
• Be transparent about your intentions.
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QUESTIONS
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THANK YOU!
Ruth E. Trask
709.570.8893
rtrask@stewartmckelvey.com
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These materials are intended to provide brief informational
summaries only of legal developments and topics of general
interest. The materials should not be relied upon as a
substitute for consultation with a lawyer with respect to the
reader’s specific circumstances. Each legal or regulatory
situation is different and requires review of the relevant facts
and applicable law. If you have specific questions related to
these materials or their application to you, you are
encouraged to consult a member of our firm to discuss your
needs for specific legal advice relating to the particular
circumstances of your situation. Due to the rapidly changing
nature of the law, Stewart McKelvey is not responsible for
informing you of future legal developments.
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