Social Media And Employees – A Potentially Dangerous Mix!

1. Social Media And Employees – A Potentially Dangerous Mix! Edward Majewski, Partner Gowling Lafleur Henderson LLP Lexpert - Fourth Annual Social Media Law Conference June 2, 2014

2. Introduction • 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.)

3. 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

4. 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. • 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)

5. Social Media as a Tool…Recruiting/Screening • Fairness issues • internet is unreliable • may be limiting hiring to only those with digital presence

6. 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 • Example: trash-talking competitors in industry discussion forums • Securities law violations (insider trading, “tipping”) • Employee tweeting that s/he is working on a “big deal!”

7. Social Media…Legal Risks • Admissions against employer’s interests • 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 • Example: boasting about working on customer’s top secret project

8. 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”

9. 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)

10. 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

11. 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.

12. 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. • 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.

13. Employer Do’s • Require employees to report inappropriate social media activity immediately to a designated company representative. • 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”. • Give them “real time” examples of how companies (and by extension their employees) have been damaged by inappropriate social media activity.

14. 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”.

15. 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

16. Social Media Policies …Contents • 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) • Remind employees about the perils of social media (durability of electronic information, easy access by persons outside the workplace, etc.) • 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

17. Social Media Policies …Contents • Remind employees that they may not publish any comments that may negatively affect their employer or their employer’s customers or business partners • 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 • Prohibit the violation of laws (e.g. securities laws, defamation) • Prohibit the violation of employer policies (e.g. harassment) • Prohibit the use of their employer’s logos, trade-marks, slogans, etc.

18. Social Media Policies …Contents • Prohibit speaking on behalf of their employer, especially about anything in relation to their employer that is currently in the news • If not prohibited entirely, then explain extent to which social networking is permitted on employer’s computers and during working hours • Explain any specific rules regarding the use of social media in work-related capacities (e.g. “Friending” customers) • Advise employees that their use of social media while at work will be monitored (i.e. no expectation of privacy)

19. Social Media Policies …Contents • Direct employees to respect their co-workers’ privacy and warn them about cyber-bullying • Advise employees of the proper channels available to them to express workplace concerns (instead of blogging about them!) • 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 • Advise employees of the consequences of violating the policy (e.g. employer will report unlawful activity to the authorities, termination for just cause)

20. Social Media Policies …Contents • Require employees to report breaches (by others and themselves) immediately. • 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.

21. 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

22. Case Law Update • Simard Westlink Inc. v. Wallace, 2013 BCSC 2218 • 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 • permanent injunction obtained against employee for breach of confidentiality • Perez-Moreno v. Kulczycki, 2013 HRTO 1074 • (personal) respondent posted on Facebook that she had been disciplined for calling applicant an ethnic slur at work • Human Rights Code protects employees from harassment by their co-workers via social media • respondent ordered to take Human Rights Commission sensitivity course

23. Case Law Update • Communications, Energy and Paperworkers Union of Canada, Local 64 v. Corner Brook Pulp and Paper Limited, 2013 CanLII 87573 (NL LA) • dismissal of employee upheld where she posted threatening comments and ethnic slurs on Facebook directed at supervisors when she became frustrated with safety investigation

24. Case Law Update • Bell Technical Solutions v. Communications, Energy and Paperworkers Union of Canada (Facebook Posting Grievance), 2012 OLAA No 481 • Facebook postings that ridiculed employer and supervisor • 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 • Dismissal factors: Facebook postings were frequent and prolonged (more than 16 months); derogatory to employer and supervisor • Reinstatement factors: provocation by supervisor

25. Case Law Update • Alberta Health Services, 2012 CanLII 12067 • 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 • 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 • Dismissal upheld of employee who briefly posted photos from scene of patient suicide and comments • Factors: breach of patient confidentiality; lack of candour

26. Case Law Update • Ornge, [2011] OLAA No 232 • 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 • 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)

27. Case Law Update • Groves v. Cargojet Holdings Ltd, [2011] CLAD No 257 • 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 • 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 • Discharge for time theft overturned where grievor’s unauthorized use of social media during working hours didn’t compromise workplace performance

28. Case Law Update • International Union of Elevator Constructors, Local 50 v. ThyssenKrupp Elevator (Canada) Ltd., 2011 CanLII 46585 (OLRB) • Dismissal upheld of employee shown in video, shot during lunch break, with genitals stapled to wooden plank posted • 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.

29. Case Law Update • S.G.E.U v. Saskatchewan (Ministry of Corrections, Public Safety & Policing), 2009 CarswellSask 913 • Dismissal of three corrections officers upheld for joining racist Facebook group created by one of them • 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?” • Factors: employees were peace officers

30. Edward Majewski, PartnerTel: (416) 862-4422Fax: (416) 862-7661Email: ed.majewski@gowlings.com