Stuart Rudner discusses managing employees and social media use in the workplace.

1. AGF Investments
December 6, 2013
Toronto
Presented by
Stuart E. Rudner
Managing Employees in the
Social Media Era

2. 2
Why Should We Be Concerned About Misuse?
• Lost productivity
• Corporate liability
– Harassment
• Damaged reputation
– Lost customers
– Lost shareholders
– Share devaluation
• Ownership of Social Media Accounts

3. 3
Why Should We Be Concerned About Misuse?
(cont’d)
• Not just “desktop issue”
– Laptops
– iPads
– Smartphones
• 24/7
• On duty
• Off duty

4. 4
“Cyberslacking”
• Staff with FaceBook open all day
• Hours & hours online
• Talking and texting on personal cell phone while
at work

5. 5
Reputation
• Teenage victim of bullying commits suicide
• Facebook memorial
• Individual posts: “Thank God this b---- is
dead”
• He and his employer are readily identifiable
• Just cause for dismissal?

6. 6
FaceBook post:
“have to work this weekend because our new
products failed initial tests”

7. 7
Harassment
Post on co-worker’s wall
 “I loved the skirt you were wearing today. You have the
sexiest legs in the office!”
“I hope you have another short skirt you can wear
tomorrow – maybe no hose this time?”

8. Recent Incidents
 OHL Ref: “Soo Saint Marie, two words,
Slim Pickens. #noteeth #hicktown
#allfaties."
 Mr. Lube employee: “Any dealers in
Vaughan wanna make a 20sac chop?
Come to Keele/Langstaff Mr. Lube, need a
spliff or two to help me last this open to
close.”
8

9. 9
Online Recommendations
• Employee dismissed for cause based on poor
performance
• Manager gave him recommendation on LinkedIn
the week before dismissal
• Now suing for wrongful dismissal

10. 10
What to Do?
Protecting the Organization with Policies
1. Produce a written policy and include it as part of the
employment contract
2. Communicate / publicize the policy to everyone
3. Monitor use of technology and workplace behaviour
4. Discipline violators – avoid condonation
5. Continuously update policy as technology evolves

11. 11
Workplace Acceptable Use Policies
Policy Implementation and Enforceability
Considerations
• Effective, enforceable rules to manage risk
• Strike the right balance between protecting the
organization and preserving individual privacy
• Limit employees’ expectation of privacy in using
employer’s equipment and networks
• Clear language
• Different rules for different roles

12. 12
Setting clear Rules
• 24 pictures of “sunshine girls”
– “ Although the nature of the pictures are offensive to
a segment of society and may be offensive to some
fellow employees… without attempting to attach a
label to these pictures it [is] sufficient to say that for
the purpose of this arbitration they are not as labeled
by the Employer…. “pornographic, sexually explicit
pictures”…”

13. Employment Agreements
 Use to set control social media usage
 Also to establish ownership of accounts
 Do it properly
– Before there’s already an
agreement
 Maintain control over
accounts

14. 14
The Law
• No need for new law – legal principles exist to
deal with these scenarios
• New application of existing legal principles
– Personal use is no different than previous example of
“slacking”
– Email/FaceBook harassment is same as earlier forms
of harassment

15. 15
Privacy issues
 General recognition of employer right to monitor
usage
 Corporate email or otherwise
 Searching company-owned equipment
 Cole and other decisions
 Have a policy
 Include statement in contract: don’t put it on
our system if you don’t want us to see it

16. 16
Dismissals
 2 types: With cause or without
cause
 If with cause, no further
obligation to employee
 Otherwise, need to assess
employee’s entitlements to
notice/pay in lieu/severance
 No “near cause”

17. 17
Without Just Cause
 Notice of Dismissal or Pay in Lieu
 Two sources of entitlement
– Employment Standards Act /
Canada Labour Code
– Common Law
 Can contract out of common law

18. 18
Dismissals for Just Cause
 Capital Punishment of Employment Law
 Employer must prove:
1. that the alleged misconduct took place,
and
2. that the nature or degree of misconduct warranted
dismissal, bearing in mind all relevant
circumstances
 Proportionality is guiding principle – “punishment
must fit the crime”

19. The Contextual Approach
 Employer must consider all circumstances,
not just alleged misconduct
– Length of service
– Disciplinary history
– Nature of position
 No absolute rules
 Same set of facts can yield different
results
19

20. Can you Discipline for Off-Duty
Conduct?
 Generally, what you do on your time is your business
 Unless
– The conduct renders the employee unable to perform his
duties satisfactorily.
– The conduct interferes with the efficient management of
the operation or workforce.
– The conduct leads to a refusal or reluctance of other
employees to work with him.
– The conduct harms the general reputation of the Employer,
its product or its employees.

21. 21
The Importance of the
Investigation
 Investigate first
 Ensure fairness, objectivity, thoroughness
 Give opportunity to respond
 Often, employee response is critical factor
in determining appropriate discipline

22. 22
Social Media Post-dismissal
• Duty to mitigate
– have to look for new work
– If find new work, former employer’s obligations
reduced
• Learn when individual has mitigated
• Use social media to monitor mitigation
– LinkedIn
• Log and share job opportunities

23. 23
Stuart E. Rudner
srudner@rudnermacdonald.com
647.255.3100
www.rudnermacdonald.com
Twitter: @CanadianHRLaw
LinkedIn: Connect with me, join the
Canadian HR Law Group and visit the Rudner
MacDonald Page
Blog: Canadian HR Law
http://www.hrreporter.com/blog/canadian-hr-law
FaceBook: Rudner MacDonald Page
Google+: Canadian HR Law, Rudner MacDonald
Page
YouTube: Rudner MacDonald channel