1. 05/02/2016 Social Media & Privacy in the Workplace Parisa Nikfarjam Rubin Thomlinson LLP November 19, 2015 www.rubinthomlinson.com Follow us on Twitter @RubinThomlinson #RTbestpractices

2. 05/02/2016 Social Media & Privacy in the Workplace Agenda Social Media in the Workplace Recruitment Process Termination Misuse at Work Off-duty Conduct Privacy Concerns Post-Termination

3. 05/02/2016 Social Media & Privacy in the Workplace Social Media By the Numbers 50% of Canadians use social media 71% of companies use Facebook 43% of companies use blogs 59% of companies use Twitter 95 million daily tweets 483 million daily Facebook users

4. 05/02/2016 Social Media & Privacy in the Workplace Social Media and Recruitment Background checks on candidates 77% of employers conduct an online background checks: Google searches LinkedIn Facebook (with or without passwords) Blog postings 2009 US poll estimates 68% of employers conducted background checks via social media; 89% in 2011

5. 05/02/2016 Social Media & Privacy in the Workplace Social Media and Recruitment Privacy concerns Federal employees may have recourse under PIPEDA (accurate information) No protection for provincial employees Privacy Commissioners of Alberta, Québec, and Canada (federal) discourage use of social media as part of the background check written consent of candidate is required

6. 05/02/2016 Social Media & Privacy in the Workplace Social Media and Recruitment Ontario Human Rights Code Prohibits discrimination in regards to employment advertising, employment application forms and any employment interviews Does not prevent employer from looking at publically available information about applicant Ontario Human Rights Commission Directive, 2012 Facebook profile could include direct or indirect information on any or all of the 15 prohibited grounds (text or pictures) Ontario Human Rights Commission believes employer should not ask job applicant for access to information stored on social media or other online sites and that doing so could leave employer open to claim of discrimination

7. 05/02/2016 Social Media & Privacy in the Workplace Social Media and Recruitment Risks of collecting information through social media: Direct or indirect discrimination Traditional test for discrimination in hiring applied Inaccuracy of information

8. 05/02/2016 Social Media & Privacy in the Workplace Social Media Misuse at Work Employee Use During Work Time 91.7% check personal email 58.5% check Facebook 47.9% check LinkedIn 22.6% check Twitter 21.9% check blogs 13.4% check Yahoo groups 11.3% check iTunes 10.9% check YouTube

9. 05/02/2016 Social Media & Privacy in the Workplace Social Media Misuse at Work Misuse at Work Unless offensive or in violation of workplace policies, use of social media in itself may not constitute just cause for dismissal Warning or discipline may be justified if misuse leads to performance issues

10. 05/02/2016 Social Media & Privacy in the Workplace Social Media and Termination Joe Monette Suspended for tweeting: “Soo Saint Mari, two words, Slim Pickens. #noteeth #hicktown #allfaties” after officiating OHL game in Sault Ste Marie. Justin Hutchings Dismissed over insensitive comments on the Facebook memorial wall for Amanda Todd.

11. 05/02/2016 Social Media & Privacy in the Workplace Social Media and Termination Implied contractual duty to refrain from engaging in misconduct- onsite or off-duty Traditional factors considered to justify dismissal for off-duty misconduct: Employee’s conduct harms the employer’s reputation or product; Actual harm not required- risk of harm is sufficient Employee’s conduct renders employee unable to perform his duties satisfactorily; Employee’s conduct leads to refusal, reluctance or inability of other employees to work with him/her; and Employee’s conduct places difficulty in way employer properly carries out its function or efficiently manages its work and workforce.

12. 05/02/2016 Social Media & Privacy in the Workplace Factors to Consider Social media misconduct cases have applied the same traditional principles as off-duty misconduct cases to justify summary dismissal: Harm/potential harm to employer’s reputation; How far-reaching is the social media post? How large is the audience? Does employee speak for the company? Effect of conduct on employee’s ability to perform his/her duties; Is social media post inconsistent with employee’s duties? Effect of conduct on willingness of other employees to work with the employee; and Is social media post discriminatory; hurtful; or does it otherwise create a poisoned workplace? Effect of conduct on employer’s ability to manage its business and workforce. Does social media post create strife in workplace? Does social media post undermine managerial authority?

13. 05/02/2016 Social Media & Privacy in the Workplace Factors to Consider If an employee has engaged in social media misconduct, employer should also apply a contextual approach to discipline, taking into account the following: the employee’s length of service; the employee’s disciplinary record; the nature of the employee’s position, especially if the employee occupies a position of trust; and the employee's response when confronted with the online misconduct. The employee’s honesty and remorse can be indications that the employment relationship can be salvaged and has not been irreparably harmed.

14. 05/02/2016 Social Media & Privacy in the Workplace Social Media at Dismissal Time Former HMV employee live-tweeted mass dismissals: Using hashtag: “hmvXFactorFiring” “We’re tweeting live from HR where we’re all being fired! Exciting!” “There are over 60 of us being fired at once! Mass execution, of loyal employees who love the brand.” Sorry we’ve been quiet for so long. Under contract we’ve been unable to say a word, or – more importantly- tell the truth.”

15. 05/02/2016 Social Media & Privacy in the Workplace Social Media at Dismissal Time Dismissed HMV employee had access to the company Twitter account, and took the opportunity to send out a series of final thoughts following dismissals.

16. 05/02/2016 Social Media & Privacy in the Workplace Social Media at Dismissal Time Strategies for employers Consider how dismissed employee is connected to social media Sever social media ties prior to dismissal (or immediately thereafter)- have an exit plan that includes social media! Include social media in severance package and release documents

17. 05/02/2016 Social Media & Privacy in the Workplace Social Media and Privacy Federal employees are protected under PIPEDA Ontario has not enacted private sector privacy legislation Employee’s privacy interests governed by common law protections and contractual/policy provisions

18. 05/02/2016 Social Media & Privacy in the Workplace Social Media and Privacy R. v. Cole, 2012 SCC 53 Teacher stored pornographic photos on school-issued laptop Photos discovered during routine technology investigation Principal seized laptop; copies made; and laptop delivered to police. Teacher challenged admissibility of evidence stored on laptop arguing he had a reasonable expectation of privacy in his personal records contained on his work computer

19. 05/02/2016 Social Media & Privacy in the Workplace Social Media and Privacy Supreme Court of Canada held that: There is a reasonable expectation of privacy in personal information stored on the work-issued laptop Employer’s policies allowed for incidental personal use, therefore created higher expectation of privacy However, the same policies contemplated technology monitoring, which diminished expectation of privacy that justified school’s actions and its decisions to alert the police

20. 05/02/2016 Social Media & Privacy in the Workplace Social Media and Privacy Implications of R. v. Cole Employees can reasonably expect privacy in information contained on work-issued computers An employee’s privacy interests not negated by employer's ownership of technology where personal use is permitted or reasonably expected Workplace policies and practices may diminish expectation

21. 05/02/2016 Social Media & Privacy in the Workplace Social Media and Post-Termination Ownership of social media content and contacts Legally untested but likely highly litigious issue in future Is content developed solely on behalf of employer in course of employment the property of employer?

22. 05/02/2016 Social Media & Privacy in the Workplace Social Media and Post- Termination International caselaw PhoneDog v. Kravitz, (N.D. Cal. 2011) Twitter followers belonged to employee Eagle v. Morgan (E.D. Pa. 2011) LinkedIn account belonged to employee Whitmar Publications Ltd. V. Gamage and Ors (2013) EWHC 1881 Employer maintained ownership of LinkedIn connections

23. 05/02/2016 Social Media & Privacy in the Workplace Social Media Policy Implementing a clear policy can help maneuver the social media landscape: Informs employees of their rights and responsibilities Serves as grounds for dismissal Facilitates post-termination transition Employees ought to be trained on policies

24. 05/02/2016 Social Media & Privacy in the Workplace Social Media Policy Social media and technology use policy would outline: Company’s approach to social media Non-work usage of social media (as it may apply to business interests of company) Expectation that employee’s posts will comply with all other company policies Authorization of company required if speaking on behalf of company

25. 05/02/2016 Social Media & Privacy in the Workplace Social Media Policy Rules re: use of social medial during work hours Monitoring of social media use by company and use of collected information for legitimate business activities or to investigate breaches of the law or workplace policies Disciplinary procedure for breaching social media policy Ownership of social media account and content throughout and post-employment

26. 05/02/2016 Social Media & Privacy in the Workplace Questions? Parisa Nikfarjam pnikfarjam@rubinthomlinson.com @Pnikfarjam Connect with RT on LinkedIn and Twitter: http://www.linkedin.com/company/rubin-thomlinson-llp @rubinthomlinson