Transcript Social-Media-in-the-Workplace-Making-sure-your-company

Willson Lewis
LLP
Barristers and Solicitors
Social Media in the Workplace:
Making sure your company is protected
1183 King Street West, Suite 200, Toronto, Ontario M6K 3C5, Tel: 416 534-9504 Fax: 416 534-9503
www.willsonlewis.com
Willson Lewis LLP
BIOGRAPHIES
CATHERINE E. WILLSON, B.A., LL.B., PARTNER
A longstanding member of the Ontario Bar Association, Catherine E. Willson is a founding
partner of Willson Lewis LLP, and has established a successful practice in employment law,
civil litigation, equine, collections, construction, and family law. She was an executive
member of the Canadian Bar Association (Ontario) – Civil Litigation Section. She is also a
member of the Advocates Society, the Association of Trial Lawyers of America, and the
Toronto Construction Association. Catherine is both the Chairman of the Risk Management
Committee and an Honourary Governor of the Royal Agricultural Winter Fair. Catherine is
the legal expert for the Canadian Federation of Independent Business (Member Services)
and is a regular speaker at legal and business conferences including Cannexus, an
instructor at the University of Guelph, and writes on legal issues for several national
publications.
CRAIG A. LEWIS, B.A., LL.B., PARTNER
Has been practising employment law since being called to the Bar. He received his
Bachelor of Laws degree from Queen’s University and was admitted to the Law Society of
Upper Canada in 1993. A member of the Ontario Bar Association, Advocates Society,
Canadian Association of Black Lawyers and the Metropolitan Toronto Lawyers Association.
Craig has been a speaker at Ontario Bar Association seminars concerning advocacy
matters and has litigated at all levels of Court in the Province. In his employment practice,
Craig has prepared employment contracts and independent contractor agreements. He has
provided advice on hiring, terminations packages and wrongful dismissal claims. He has
assisted clients in drafting employment policy manuals. Craig has extensive experience in
responding to human rights complaints.
Willson Lewis LLP
BIOGRAPHIES
MARLENE KAZMAN B.Sc., LL.B. - ASSOCIATE
Marlene was called to the Ontario Bar in 1993, having received her LL.B. from the University
of Western Ontario and completing her articles at one of the oldest law firms in Canada.
Marlene’s practice includes civil, matrimonial and construction lien law. Marlene has trial
experience at all levels of Court in the Province of Ontario, and she is a member of the
Ontario Bar Association and the Women’s Law Association of Ontario. Marlene is a frequent
contributing writer of legal information articles for the National Credit News.
KRISTA BULMER, J.D. – ASSOCIATE
Krista is an associate with Willson Lewis LLP and was called to the Bar in 2006. Krista
began her practice with a Bay Street boutique litigation firm. Her practice includes business
and aviation law and she has assisted employers with developing workplace policies and
employment contracts and has acted on behalf of employees in wrongful dismissal claims.
Krista is a guest columnist for Wings Magazine and has presented to the aviation and
equine communities. Krista has appeared before Ontario courts and tribunals.
AIMEE COLYER-MCGUIRE, B.A., LL.B. – ASSOCIATE
Aimee was called to the Ontario Bar in 2007. After completing her articles with Willson Lewis
LLP, Aimee practised as an associate with two large Bay Street firms. In 2009, she returned
to the firm to practice family law and civil litigation. Aimee is a member of the Ontario Bar
Association.
Our experienced counsel practise:
Civil Litigation
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dispute resolution
court actions, applications,
injunctive relief
commercial disputes
personal disputes
mediation and arbitration
Employment Law
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employment contracts and
consulting agreements
wrongful dismissal
conflicts in the workplace
termination packages
Our experienced counsel practise:
Construction Law
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construction projects (general contract/project
management/design build)
preparation of construction contracts
tender advice and resolution of disputes
negotiation and litigation of construction disputes
including lien actions and breach of trust issues
Family Law
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divorce, separation, custody, support,
property issues
separation agreements
cohabitation and marriage contracts
settlement negotiation and mediation
Our experienced counsel practise:
Equine Law
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Dispute resolution, litigation
purchase and sale agreements,
boarding agreements and leasing
agreements
co-ownership agreements and
syndications
Aviation Law
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Regulatory matters, dispute resolution,
litigation, administrative appeals
Purchase and finance agreements,
aircraft management agreements, coownership agreements
Corporate advice
Industry advocacy
Social Media in the Workplace
Making sure your company is protected
Social Media
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Social media has been a part of daily life for several years
and has revolutionized the way people communicate.
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Communication is now “real time" using platforms like
Facebook, LinkedIn, Bebo and Twitter.
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Social media use remains a challenge in today’s
workplace.
Trends you need to be aware of
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According to an Ipsos Reid poll in 2011, over 17
million Canadians are now on social media
networks
35% of online Canadians visited a Social
Networking site everyday; a number that was only
19% in 2010
35% say that the time spent on Social Media has
increased
Google+ made an impact by amassing over 10
million users worldwide within a couple of weeks.
RISKS
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Productivity and time theft
Resources
Viruses and Malware
Inappropriate Content
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Censoring
Employer reputation and confidential information
Insubordination
Discrimination
Offensive Content
Harassment
Cyber-bullying
Employee v. Independent Contractor
RISKS cont…
 Inappropriate disclosures of personal or confidential
business information can result in:
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a defamation lawsuit;
copyright, patent or trademark infringement claims,
a privacy or human rights complaint;
a workplace grievance;
criminal charges with respect to obscene or hate
materials;
damage to the employer’s reputation and business
interests.
 Legal responsibility for damages from an
inappropriate disclosure could potentially rest with
individual employees, management or the
organization as a whole.
Recent Case Law
Lougheed Imports Ltd.
 2 employees employed by West Coast Mazda terminated
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because of Facebook postings described as “offensive,
insulting and disrespectful.”
Both employees strong supporters of a union drive and
both were “friends” with a manager on Facebook.
Employees had over 500 “friends” on Facebook
Facebook postings targeted management, the business
and products sold.
Employer investigated and confronted the employees with
copies of the postings.
Employees denied writing the posts but were terminated.
Recent Case Law Contd.
Lougheed Imports Ltd.
 Union filed unfair labour practice complaints with
the B.C. Labour Relations Board saying no just
cause to terminate.
 The Board dismissed the complaints and held
that the work offence was serious insubordination
and conduct damaging to employer’s reputation.
 Employees cannot have an expectation of
privacy as Facebook posting were “akin to
comments made on the shop floor”.
Recent Case Law Contd.
Chatham-Kent (Municipality) v. National Automobile,
Aerospace, Transportation and General Workers
Union of Canada
 Ontario employee dismissed for breach of confidentiality
agreement, insubordination and conduct unbefitting a personal
care giver because of her blog.
 She posted comments about her employer, conditions in the
retirement home, personal information about residents in the
home without consent.
 Arbitrator held that the blog comments were insolent,
disrespectful, and contemptuous of management and an attempt
to undermine management’s reputation and authority.
 Breached confidentiality agreement by disclosing residents
personal information on a website accessible to the public.
Case Law Contd.
Shonn’s Makeovers & Spa v. Canada
 Tax Court of Canada recently ruled that a Facebook
profile was relevant evidence as to whether a person
providing services to a spa did so as an employee or
an independent contractor.
 CRA had ruled that the business where that person
worked owed unpaid E.I. and CPP premiums, on the
basis that the person was an employee.
 The Tax Court, with the benefit of the description of
the person as self-employed on his Facebook page,
ruled that the CRA was incorrect.
Case Law Contd.
Wasaya Airways v. Airline Pilots Assoc.
 Airline owned by a number of First Nations
 Pilot discharged after posting "extremely serious,
offensive and derogatory comments regarding the
Company's owners and customers“ (ie First Nations
people).
 Arbitrator held that "where the internet is used to
display commentary or opinion, the individual doing
so must be assumed to have known that there is
potential for virtually world-wide access to those
statements."
Other Examples
Riots in Vancouver after Stanley Cup
 A number of employees identified in Social Media
outlets as rioters were terminated
 More than 1 million photos and 1,000 hours of video
were submitted as evidence following the riot
 Spread across social media sites to identify and
shame participants in the riot
 Now there is a permanent and public record which
could impact continued employment of future online
background checks
Political Uprisings
 Real time political upheaval via Twitter in Iran in 2009
 Facebook revolution in Egypt and Tunisia in 2011
 Crackdowns in China in 2011 over anonymous calls
via social media for a Chinese Jasmine Revolution”
like in Tunisia. Banned Facebook and Twitter.
 Though Weibo, the popular microblogging site, has
become a source for news to spread, tight controls -posts are deleted or topic searches are banned -hinder the ability to use it to organize
 What were the consequences to employment in
these jurisdictions?
 What if your organization’s name became somehow
connected to this type of activity?
Protecting your organization
Options for employers:
1. Ban social media use in the workplace
entirely:
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Block access on workstations and devices
Issue with employees feeling trusted by employer
Cannot control use outside of workplace with a
ban
2. Allow social media:
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Educate employees on proper use
Create a social media policy.
Protecting your organization
Social Media Policy:
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All departments and levels of management should work
together to create a policy that works for everyone.
Ensure the policy considers future social media
technology so that it does not have to be redone.
Define terminology.
The policy should apply to the company’s social media
accounts and the employees’ personal accounts.
The policy should address use of social media from the
workplace but also on personal time.
Protecting your organization
Social Media Policy:
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Set out what activities are permitted and which are not:
no illegal activity such as downloading pirated music,
software, pornography
 No disparaging or defamatory remarks
Prohibit speaking on behalf of employer, disclosure of
confidential information, trade secrets etc.
Disclose if use will be monitored by employer
Disclaimers: opinions are my own
The consequences of failure to comply must be clearly set
out. Suspension? Termination?
The policy should be in writing and written acknowledgement
of the policy by each employee is recommended.
Policy must be easy to access.
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Willson Lewis
LLP
Barristers and Solicitors
Social Media in the Workplace:
Making sure your company is protected
1183 King Street West, Suite 200, Toronto, Ontario M6K 3C5, Tel: 416 534-9504 Fax: 416 534-9503
www.willsonlewis.com