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P.A. Neena Gupta
Gowling Lafleur Henderson LLP
April 17, 2013
The Promise and Perils of
Social Media
The World is a very Social Place
Social Media Landscape
Social Media Explained
Linkedin – My skills include eating donuts
Facebook – I like donuts
FourSquare – This is where I eat donuts
Instagram – Here’s a vintage photo of my donut
Pinterest – Here’s a donut recipe
Twitter – I’m eating a donut
Instagram – here’s a picture of me eating a donut
YouTube - here I am, eating a donut
G+ - I’m a Google employee who eats donuts
http://stevensblog.org/social-media-donuts/
First developed by Douglas Wray
Employment and Labour Seminar 2013: The Perils and Promises of Social Media
The Opportunity
• Create awareness of business
• Communicate with clients
• Communicate internally with employees
• Cost-effective, customized and creative
The Perils of Social Media
“A click of a button is all it
takes to ruin
somebody’s life”
Attorney Ed Vasquez, lawyer for the family of Audrie Pott,
who allegedly committed suicide after she was sexually assaulted while intoxicated
and pictures of the assault were circulated on the internet
Interview, CBC Radio, As it Happens, Friday, April 12, 2013
Generational divide – no societal consensus
• Traditionalists –
– What is personal is private
– Implied obligation to keep confidences secret and confidential
– In the era of Mad Men,
o People had affairs and tried to keep it quiet
• Generation X, Y and I (internet)
– What is private is public
– Sex, Lies and Videotape (1989)
– Weinergate (2011) – Congressman tweets sexually-explicit
photos of himself and lies about it
– Young people brag about their sex lives with real time
photographs
Generational Divide –no societal consensus
• Old:
– Magician’s Code of Honor:
o Never reveal how it a trick is actually performed
o International Brotherhood of Magicians enforced code
o Effectively, union shop
• New:
– “Magic’s Biggest Secrets Finally Revealed”
o Network TV
o YouTube
The Law is playing “catchup” with traditional tools
• Libel and slander
– A tort to spread untrue information
– What about opinion?
– What about truthful information that is negative
• Privacy
– On January 20, 2012, the Ontario Court of Appeal recognized
U.S. concept of Intrusion upon seclusion; Jones v. Tsige
• Human Rights
– Use of social media inevitably discloses information about
“protected grounds”
– Awkward tool to deal with new media
• Labor Rights
– overly restrictive policies may offend labour laws
The law is playing “catchup” with traditional tools
• Confidentiality
– A business owns its confidential information and can take
legitimate steps to protect it
– Is it confidential when “it’s all over YouTube”, Twittr,
Facebook?
– Think about the media frenzy when Princess Catherine (Kate
Middleton) admitted to hospital
• Intellectual Property (copyright, trademark)
– A business owns the right to its work product
• Contract
– A business has the right to stipulate the terms and conditions
of business (including employment)
The End of Privacy?
• The End of Privacy (New York Times, SR 10, July 14,
2012)
– We are digitally monitored all the time
o Locational data on smartphones/blackberries/cellphones
o IPS and service providers have copies of txts, emails and data
usage
• Nothing is forgotten – it’s all cached somewhere
The End of Privacy?
• Simple searches can bring up information:
– Youthful indiscretions
– Marital infidelity
– Ethnic and religious affiliations
– Marital status
– Political activity
– Union activity
Canadian law just developing
• Privacy Commissioners of Alberta, Quebec and Canada (federal) have
all discouraged use of social media as part of background check
• If business governed by federal Canadian law (inter-provincial
transportation) or by Alberta/Quebec law, company must have written
consent by candidate or employee before doing social media searches
and can only review and retain relevant data
• Consent may be revoked at any time
• Law unclear in balance of provinces: best practice … get written
consent
Canadian law just developing
• Privacy Commissioners have each issued bulletins or
opinions regarding social media in the workplace
– Canada: Privacy and Social Networks in the Workplace
o http://www.priv.gc.ca/resource/fs-fi/02_05_d_41_sn_e.asp
– Alberta & BC both have indicated that social media
background checks generally not “reasonable” in the private
sector; if conducted, specific methods to review/retain
required
Guidelines for Social Media Background Checks, Office of the Information and
Privacy Commissioner (BC, October 2011 and Alberta, December 2011)
Social Media– Recruitment
• 77% of employers search online to do background checks
– Effective, detailed background checks critical to screening out liars,
candidates who have exaggerated their job title and skill set
• Should you “google” a candidate? Should you check their public
profile on “Facebook”
– Cons: knowing things you shouldn’t know about the candidate, e.g.
age, race, sexual orientation, religion, disability, etc.
– Need to consider federal (Canada), Alberta or BC guidelines
– Pros
o learning about issues you should know about that are not caught in
standard background checks
o Avoiding embarrassment of learning after hire that candidate under
investigation for fraud, sexual harassment, involvement with motor cycle
gang
Social Media -- Recruitment
• Best Practice
– Check internet profile of candidates that have been shortlisted
and are “serious” contenders
– Obtain written consent to background search
– Have someone other than the final decision-maker(s) screen
out irrelevant information
– Have decision-maker review only relevant information – i.e.
relevant to the job itself and not just irrelevant gossip
– Create retention policy/disposal of data policy
– Consider applicability of Canadian, Alberta & BC guidelines
Recruitment -- Passwords
• What about asking for Facebook password or
passwords to other sites?
• Requires breach of Facebook user agreement
• Most sites require that user keep password
confidential
Recruitment -- Passwords
• OHRC issued a press release indicating its belief that
password requests violates Human Rights law
• Strong potential that it reveals information that is
irrelevant and that is illegal to ask in interview process,
e.g. age, marital status, religion, family status
• likely violates BC, Alberta and Canadian privacy laws
(because it requires more information than necessary0
• No binding case law in this regard
• Some legislative efforts considered
Reputational Management
• Companies need to manage their reputation
• Monitor social media activity about their company
• Learn what their contractors, employees, customers
say about them
• Legal tools such as cease and desist letters,
injunctions and law suits apply to social media, but
can be difficult in this brave, new anonymous world
• Contacting U.S. service providers online often gets
virtually instant response from in-house legal team
Social Media – The Future is Now
• Social networking and restrictive covenants (e.g. non-
solicitation obligations)?
– Linkedin contents – one status update advises the employee’s
universe of where employee now works … is that a form of
solicitation?
• updating employment contracts to address social
media issues
– Requiring employee to “unfriend” customers upon termination
– who owns the “contacts”, social media account?
– Linkedin recommendations
• unionization via social media?
How are the courts responding to social media?
• Employee posted negative and threatening comments
on her Facebook page about her supervisor
– Wanted to kick supervisor in “genitalia”
– Wanted to spit in leadhand’s face
– Insulted co-workers
• No policy in the workplace
• Disseminated only to “friends”
• Finding that it did not damage employer’s business
• 1 month’s suspension:
Examples of trash talking that went too far
• Unionized employee at West Coast Mazda (Lougheed
Imports), 2010 BCLRB B/190
o Company “ripped off” people
o “crooks” and “greedy”
o Critical of employer’s products and recommended going to a
competitor
o Allusions to violence and vengeance against owner
o Girlfriend even warns not to post on Facebook, but response:
“that’s the whole point, honey”
• Discharge upheld, but another factor was lack of
candor during investigation
• Facebook account “hacked”
Examples of trash talking that went too far
• Unionized pilot for Wasaya Airways (First Nations
airline)
• Postings derogatory of
– First Nations customers and owners
– Employer’s name not mentioned on Facebook (but easy to
determine
• Pilot married to First Nations individual and found not
to be “racist”
• Contrary to policy
• Discharged … ultimately given 4 months’ pay, but
reinstatement not ordered
Social Media in Labour Cases
• 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), existence of policy
• 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, no policy
Social Media in Labour Law
• 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; allegedly frittered way 266/790 hours of work time;
suspended without pay for 15 days
• 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 for 15 days substituted)
o Need for education
Social Media in Labour Law
• Canadian Union of Postal Workers (Discharge for
Facebook postings Grievance), [2012] CLAD No 85
o Drinking and texting
o discharge for abusive comments on Facebook about manager
upheld where some of grievor’s “friends” were co-workers
o Used vile and profane language about two supervisors
o Showed open disrespect of Canada post and her managers
o Both supervisors went on temporary stress leave and both were
re-assigned to different depots
o Showed little or no remorse
o Many Facebook friends current and former Canada Post
employees
Why you need a social media policy
“Many subscribers, in particular young
persons, regarding Facebook as conduct
engaged in on personal time, unconnected to
the workplace, analogous to sharing a beer
with colleagues and friends, or getting
together with friends to confide details about
their jobs.”
Arbitral Decision
Social Media Policies are Crucial
• Written policies educate employees may need help in
exercising their judgment
• Clarify rules of the workplace and support
discipline/termination when employees cross those
lines
• Explains perils of social media to employees
• Rebuts presumption that employee “didn’t
understand”, “acted without malice”, “young”, “didn’t
understand public”, “thought limited to friends”
Social Media Policies are Crucial
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, lasts forever, etc.)
Social Media Policies are Crucial
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
Social Media Policies are Crucial
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, misuse of trademark or copyright).
Social Media Policies are Crucial
7. Prohibit the violation of employer policies (e.g.
harassment)
8. Prohibit the use of their employer’s logos, trade-marks,
slogans, etc.
Social Media Policies are Crucial
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, Linkedin profile, providing recommendations
on Linkedin)
12. Advise employees that their use of social media while at
work will be monitored (i.e. no expectation of privacy)
Social Media Policies are Crucial
13. Advise employees of the proper channels available to
them to express workplace concerns (instead of blogging
about them!)
14. 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
15. Advise employees of the consequences of violating the
policy (e.g. employer will report unlawful activity to the
authorities, termination for just cause)
16. TRAIN YOUR EMPLOYEES – MAKE SURE THEY
UNDERSTAND THE RISKS AND OPPORTUNITIES OF
SOCIAL MEDIA
montréal • ottawa • toronto • hamilton • waterloo region • calgary • vancouver • moscow • london
Thank You
P.A. Neena Gupta
Tel: (416) 862.5700/519.575.7501
Email: neena.gupta@gowlings.com

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Employment and Labour Seminar 2013: The Perils and Promises of Social Media

  • 1. P.A. Neena Gupta Gowling Lafleur Henderson LLP April 17, 2013 The Promise and Perils of Social Media
  • 2. The World is a very Social Place
  • 3. Social Media Landscape Social Media Explained Linkedin – My skills include eating donuts Facebook – I like donuts FourSquare – This is where I eat donuts Instagram – Here’s a vintage photo of my donut Pinterest – Here’s a donut recipe Twitter – I’m eating a donut Instagram – here’s a picture of me eating a donut YouTube - here I am, eating a donut G+ - I’m a Google employee who eats donuts http://stevensblog.org/social-media-donuts/ First developed by Douglas Wray
  • 5. The Opportunity • Create awareness of business • Communicate with clients • Communicate internally with employees • Cost-effective, customized and creative
  • 6. The Perils of Social Media “A click of a button is all it takes to ruin somebody’s life” Attorney Ed Vasquez, lawyer for the family of Audrie Pott, who allegedly committed suicide after she was sexually assaulted while intoxicated and pictures of the assault were circulated on the internet Interview, CBC Radio, As it Happens, Friday, April 12, 2013
  • 7. Generational divide – no societal consensus • Traditionalists – – What is personal is private – Implied obligation to keep confidences secret and confidential – In the era of Mad Men, o People had affairs and tried to keep it quiet • Generation X, Y and I (internet) – What is private is public – Sex, Lies and Videotape (1989) – Weinergate (2011) – Congressman tweets sexually-explicit photos of himself and lies about it – Young people brag about their sex lives with real time photographs
  • 8. Generational Divide –no societal consensus • Old: – Magician’s Code of Honor: o Never reveal how it a trick is actually performed o International Brotherhood of Magicians enforced code o Effectively, union shop • New: – “Magic’s Biggest Secrets Finally Revealed” o Network TV o YouTube
  • 9. The Law is playing “catchup” with traditional tools • Libel and slander – A tort to spread untrue information – What about opinion? – What about truthful information that is negative • Privacy – On January 20, 2012, the Ontario Court of Appeal recognized U.S. concept of Intrusion upon seclusion; Jones v. Tsige • Human Rights – Use of social media inevitably discloses information about “protected grounds” – Awkward tool to deal with new media • Labor Rights – overly restrictive policies may offend labour laws
  • 10. The law is playing “catchup” with traditional tools • Confidentiality – A business owns its confidential information and can take legitimate steps to protect it – Is it confidential when “it’s all over YouTube”, Twittr, Facebook? – Think about the media frenzy when Princess Catherine (Kate Middleton) admitted to hospital • Intellectual Property (copyright, trademark) – A business owns the right to its work product • Contract – A business has the right to stipulate the terms and conditions of business (including employment)
  • 11. The End of Privacy? • The End of Privacy (New York Times, SR 10, July 14, 2012) – We are digitally monitored all the time o Locational data on smartphones/blackberries/cellphones o IPS and service providers have copies of txts, emails and data usage • Nothing is forgotten – it’s all cached somewhere
  • 12. The End of Privacy? • Simple searches can bring up information: – Youthful indiscretions – Marital infidelity – Ethnic and religious affiliations – Marital status – Political activity – Union activity
  • 13. Canadian law just developing • Privacy Commissioners of Alberta, Quebec and Canada (federal) have all discouraged use of social media as part of background check • If business governed by federal Canadian law (inter-provincial transportation) or by Alberta/Quebec law, company must have written consent by candidate or employee before doing social media searches and can only review and retain relevant data • Consent may be revoked at any time • Law unclear in balance of provinces: best practice … get written consent
  • 14. Canadian law just developing • Privacy Commissioners have each issued bulletins or opinions regarding social media in the workplace – Canada: Privacy and Social Networks in the Workplace o http://www.priv.gc.ca/resource/fs-fi/02_05_d_41_sn_e.asp – Alberta & BC both have indicated that social media background checks generally not “reasonable” in the private sector; if conducted, specific methods to review/retain required Guidelines for Social Media Background Checks, Office of the Information and Privacy Commissioner (BC, October 2011 and Alberta, December 2011)
  • 15. Social Media– Recruitment • 77% of employers search online to do background checks – Effective, detailed background checks critical to screening out liars, candidates who have exaggerated their job title and skill set • Should you “google” a candidate? Should you check their public profile on “Facebook” – Cons: knowing things you shouldn’t know about the candidate, e.g. age, race, sexual orientation, religion, disability, etc. – Need to consider federal (Canada), Alberta or BC guidelines – Pros o learning about issues you should know about that are not caught in standard background checks o Avoiding embarrassment of learning after hire that candidate under investigation for fraud, sexual harassment, involvement with motor cycle gang
  • 16. Social Media -- Recruitment • Best Practice – Check internet profile of candidates that have been shortlisted and are “serious” contenders – Obtain written consent to background search – Have someone other than the final decision-maker(s) screen out irrelevant information – Have decision-maker review only relevant information – i.e. relevant to the job itself and not just irrelevant gossip – Create retention policy/disposal of data policy – Consider applicability of Canadian, Alberta & BC guidelines
  • 17. Recruitment -- Passwords • What about asking for Facebook password or passwords to other sites? • Requires breach of Facebook user agreement • Most sites require that user keep password confidential
  • 18. Recruitment -- Passwords • OHRC issued a press release indicating its belief that password requests violates Human Rights law • Strong potential that it reveals information that is irrelevant and that is illegal to ask in interview process, e.g. age, marital status, religion, family status • likely violates BC, Alberta and Canadian privacy laws (because it requires more information than necessary0 • No binding case law in this regard • Some legislative efforts considered
  • 19. Reputational Management • Companies need to manage their reputation • Monitor social media activity about their company • Learn what their contractors, employees, customers say about them • Legal tools such as cease and desist letters, injunctions and law suits apply to social media, but can be difficult in this brave, new anonymous world • Contacting U.S. service providers online often gets virtually instant response from in-house legal team
  • 20. Social Media – The Future is Now • Social networking and restrictive covenants (e.g. non- solicitation obligations)? – Linkedin contents – one status update advises the employee’s universe of where employee now works … is that a form of solicitation? • updating employment contracts to address social media issues – Requiring employee to “unfriend” customers upon termination – who owns the “contacts”, social media account? – Linkedin recommendations • unionization via social media?
  • 21. How are the courts responding to social media? • Employee posted negative and threatening comments on her Facebook page about her supervisor – Wanted to kick supervisor in “genitalia” – Wanted to spit in leadhand’s face – Insulted co-workers • No policy in the workplace • Disseminated only to “friends” • Finding that it did not damage employer’s business • 1 month’s suspension:
  • 22. Examples of trash talking that went too far • Unionized employee at West Coast Mazda (Lougheed Imports), 2010 BCLRB B/190 o Company “ripped off” people o “crooks” and “greedy” o Critical of employer’s products and recommended going to a competitor o Allusions to violence and vengeance against owner o Girlfriend even warns not to post on Facebook, but response: “that’s the whole point, honey” • Discharge upheld, but another factor was lack of candor during investigation • Facebook account “hacked”
  • 23. Examples of trash talking that went too far • Unionized pilot for Wasaya Airways (First Nations airline) • Postings derogatory of – First Nations customers and owners – Employer’s name not mentioned on Facebook (but easy to determine • Pilot married to First Nations individual and found not to be “racist” • Contrary to policy • Discharged … ultimately given 4 months’ pay, but reinstatement not ordered
  • 24. Social Media in Labour Cases • 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), existence of policy • 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, no policy
  • 25. Social Media in Labour Law • 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; allegedly frittered way 266/790 hours of work time; suspended without pay for 15 days • 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 for 15 days substituted) o Need for education
  • 26. Social Media in Labour Law • Canadian Union of Postal Workers (Discharge for Facebook postings Grievance), [2012] CLAD No 85 o Drinking and texting o discharge for abusive comments on Facebook about manager upheld where some of grievor’s “friends” were co-workers o Used vile and profane language about two supervisors o Showed open disrespect of Canada post and her managers o Both supervisors went on temporary stress leave and both were re-assigned to different depots o Showed little or no remorse o Many Facebook friends current and former Canada Post employees
  • 27. Why you need a social media policy “Many subscribers, in particular young persons, regarding Facebook as conduct engaged in on personal time, unconnected to the workplace, analogous to sharing a beer with colleagues and friends, or getting together with friends to confide details about their jobs.” Arbitral Decision
  • 28. Social Media Policies are Crucial • Written policies educate employees may need help in exercising their judgment • Clarify rules of the workplace and support discipline/termination when employees cross those lines • Explains perils of social media to employees • Rebuts presumption that employee “didn’t understand”, “acted without malice”, “young”, “didn’t understand public”, “thought limited to friends”
  • 29. Social Media Policies are Crucial 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, lasts forever, etc.)
  • 30. Social Media Policies are Crucial 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
  • 31. Social Media Policies are Crucial 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, misuse of trademark or copyright).
  • 32. Social Media Policies are Crucial 7. Prohibit the violation of employer policies (e.g. harassment) 8. Prohibit the use of their employer’s logos, trade-marks, slogans, etc.
  • 33. Social Media Policies are Crucial 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, Linkedin profile, providing recommendations on Linkedin) 12. Advise employees that their use of social media while at work will be monitored (i.e. no expectation of privacy)
  • 34. Social Media Policies are Crucial 13. Advise employees of the proper channels available to them to express workplace concerns (instead of blogging about them!) 14. 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 15. Advise employees of the consequences of violating the policy (e.g. employer will report unlawful activity to the authorities, termination for just cause) 16. TRAIN YOUR EMPLOYEES – MAKE SURE THEY UNDERSTAND THE RISKS AND OPPORTUNITIES OF SOCIAL MEDIA
  • 35. montréal • ottawa • toronto • hamilton • waterloo region • calgary • vancouver • moscow • london Thank You P.A. Neena Gupta Tel: (416) 862.5700/519.575.7501 Email: neena.gupta@gowlings.com