Social Media in the Workplace April 30, 2015 Jade Buchanan & Kristél Kriel

Transcription

1 Social Media in the Workplace April 30, 2015 Jade Buchanan & Kristél Kriel

2 Click Agenda to edit Master title style 1. Introduction: Social Media Risks and Policies in Workplace 2. Specific Issues a) Privacy and Cyber Bullying Laws b) Monitoring Social Media c) Misuse Harassment d) Misuse Harming Employer Reputation e) Misuse Breaching Third Party Rights Disclosure, Defamation, and Intellectual Property 3. Conclusions + Recommendations 2

3 1. Introduction to Social Media Risks and Policies in the Workplace

4 Click Social to Media edit in Master the Workplace title style What is Social Media? 4

5 Click Social to Media edit in Master Workplace title style Statistics on Social Media in the Workplace* Nearly 90% of businesses use social media for business purposes >70% of businesses reported having to take disciplinary action against employees for misuses (up from 35% the previous year) 36% of employers block access to social media sites 80% of businesses have social media policies (up from 60% the previous year); 52.43% of employers social media policies cover both use at work and outside of work 52.94% of businesses updated their social media policies in the past year to help manage the risk of misuse 37.5% of employers provide employees with training on appropriate use of social media *Proskauer Rose LLP / Social Media in the Workplace Around the World 3.0 (2013/14) 5

6 Click Social to Media edit Use Master title style Interesting Statistics: December 2008: Facebook had 100 million users. March 2015: Facebook indicated that 1.44 billion monthly active users. Canada: Country with the most active Facebook users (per capita) at 19 million. 6

7 Click Overview to edit Master title style Risks Social Media Presents to Workplace 1. Employee/employee interaction (harassment / discrimination) 2. Employee misuse harms reputation of employer (attack employer, offensive content, etc.) 3. Employee misuse of social media causes employer to breach third party right (intellectual property, defamation, criminal, breach of confidentiality) 4. Viruses/data breach 5. Lost productivity 7

8 Click Overview to edit Master title style How a Social Media Policy Mitigates Risk / Protect Employers and Employees 1. Preventative tools Prevent incidents through education and by controlling content 2. Investigative tools Increase ability for employer to monitor and investigate social media activity 3. Remedial tools Provide tools for employers to discipline / terminate employee for breach Note: Tools are inter-related (e.g. education increases severity of breach, increasing likelihood discipline will be upheld) 8

9 2A. Specific Issues: Privacy and Cyber Bullying Laws

10 How do Privacy Laws Apply to Social Click to edit Master title style Media in the Workplace? Collection, use and disclosure of personal information is regulated by different statutes There are different legislative considerations for public and private sector employers Federally and provincially regulated employers also have different but similar privacy legislation 10

11 What laws apply to Social Media in the Click to edit Master title style Workplace? Federal: Personal Information Protection and Electronic Documents Act ( PIPEDA ) Protecting Canadians from Online Crime Act (the Cyber Bullying Act ) Provincial: The Local Authority Freedom of Information and Protection of Privacy Act ( LA FOIP ) The Health Information Protection Act ( HIPA ) for personal health information. The Privacy Act Common law 11

12 Click What does to edit Privacy Master Legislation title style require? Privacy legislation contains similar requirements regarding collection, use and disclosure of personal information (PI): Limits on the collection, use and disclosure of PI Subject individual s consent is required to collect PI Exceptions to the general consent rule (these vary from statute to statute) Collection of PI must be reasonable for the purpose for which it is collected Reasonable steps must be taken to ensure that PI collected is accurate, complete, up-to-date, and appropriately protected and retained Individuals have ability to access information in possession and control of public bodies 12

13 Click What is to personal edit Master information? title style Personal Information = Information about an identifiable Individual Examples: education; criminal history; employment history; financial activities; health history, home address and phone number; personal views or opinions of the individual; private or confidential correspondence; views or opinions of another person about the individual; tax information; and the name of the individual if disclosure would reveal personal information. 13

14 Click Common to edit Law Master Interpretation title style Common Law: Reasonable Expectation of Privacy In workplace, employers must achieve a balance between: 1) the employer s business objectives, and 2) the employee s right to privacy. R v Cole, 2012 SCC 53 High school teacher s laptop contained nude photographs of minor student. The evidence collected from the laptop violated Cole s Charter right to be free from unreasonable search and seizure. Canadians have a reasonable expectation of privacy in their work computers where personal use is permitted or reasonably expected. 14

15 Click Common to edit Law Master Interpretation title style Reasonable Expectation of Privacy in the Workplace depends on: 1) Whether the employee owns the hardware and/or software; 2) Whether the technology is being used during business hours; 3) The employer s policies surrounding internet and use; 4) Whether the employee has been made aware of the employer s policies; and 5) The extent to which the employer s policies are regularly and consistently enforced. 15

16 The Protecting Canadians from Online Click to edit Master title style Crime Act Addresses matters relating to cyber bullying Lawful access provisions address search and seizure of Internet data Amends Criminal Code, Canada Evidence Act, Competition Act, Mutual Legal Assistance in Criminal Matters Act Came into force on March 9,

17 The Protecting Canadians from Online Click to edit Master title style Crime Act Cyber Bullying: New criminal offence relating to intimate images Wide powers for judges in relation to new offence Existing offences expanded to include electronic communications Lawful Access: Demands for preservation of electronic evidence Wide powers for judges relating to electronic evidence Streamlined process for warrants and orders to intercept private communications 17

18 The Protecting Canadians from Online Click to edit Master title style Crime Act Interpretation of request for subscriber information from ISP in R v Spencer, 2014 SCC 43 Police request for IP address relating to child pornography Internet users have reasonable expectation of privacy in their Internet activities and online ISP subscriber information Lawful authority within PIPEDA means more than a simple request from a government institution Police should have obtained warrant or order to compel production of information Impact on The Protecting Canadians from Online Crime Act 18

19 2A. Specific Issues: Monitoring Social Media in the Workplace

20 Monitoring Social Media Use in the Click to edit Master title style Workplace Employers may sometimes be justified in monitoring an employee s online conduct: Lougheed Imports Ltd. (cob West Coast Mazda) (Re), [2010] BCLRBD No 190 Two Mazda employees were terminated after making a number of posts on Facebook insulting the employer and their supervisors. A supervisor noticed the comments and monitored their posts, even after he was unfriended by the employees. Held: The employees did not have a reasonable expectation of privacy - the Facebook posts were visible to everyone on the employees friend lists. 20

21 Monitoring Technology Use in the Click to edit Master title style Workplace Unlike social media monitoring, monitoring technology use is strict. R v Cole: employees have a reasonable expectation of privacy in their workplace computers. 21

22 Monitoring Technology Use in the Click to edit Master title style Workplace Canadian Railway Company v Teamsters Canada Rail Conference, CROA&DR 2900: Employer requested copies of an employee s cell phone records as part of an investigation into a train accident. Held: Personal communications are, by definition, generally entirely unrelated to an employee s duties and responsibilities; however, an exception was found in this case, for several reasons: Information received only indicated that the employee had been making a call at a certain time the phone number and content of any text was blacked out; Employer chose the least intrusive method of obtaining information; and The employer had a carefully drafted policy which respected the privacy rights of the employee. 22

23 2C. Specific Issues: Misuse for Harassment

24 Click Harassment to edit Via Master Social title Media style USWA, Local 9548 and Tenaris Algoma Inc., 2014 CanLII (ON LA) Following end of a shift, grievor posted complaint about coworker on Facebook, without naming her. Comments between grievor and other employees escalated over two hours. Comments included: Her work ethic; Distinctive physical characteristics; Suggestions of performing physically aggressive and violent and humiliating acts; and A cruel nickname. 24

25 Click Harassment to edit Via Master Social title Media style USWA, Local 9548 and Tenaris Algoma Inc., 2014 CanLII (ON LA) Grievor apologized and deleted posts when confronted by management. Grievor sent home pending investigation. Terminated. Arbitrator noted several factors in determining termination justified: Vicious, humiliating and public nature of comments Grievor only employed 3 years prior to termination; no trust Employee received training on relevant social media policies 25

26 Click Harassment to edit Via Master Social title Media style Canada Post Corp v CUPW, [2012] AWLD 2981 (Alta Arb) The grievor, a postal clerk with 31 years of service made derogatory Facebook postings over a 1 month period about her supervisors. Postings were made during work and off of work. The postings were sent to more than 50 of the grievor s Facebook friends, including a number of co-workers. The supervisors required significant time off work for emotional distress after reading the postings. The grievor was terminated. 26

27 Click Harassment to edit Via Master Social title Media style Examples of postings: Oct 10; 1:03 AM Grievor Off Work: Up and drinking again. 3 nights of freedom from Postal Hell. DIE BITCH DIE. I'm playing with the Voo Doo doll. If I wasn't drunk I would take it to the driveway and run the bitch over. Nov 4; 3:43 AM Grievor At Work: Hello from stall 2. No sign of the evil [D] so everything going smooth so far. It's only 3 40 am so u never know. Her yes man [M] is here probably to make sure we don't take extra an extra minute on the lunch break gotta go sort. Nov 4; 8:53 AM Grievor Off Work: It was a long night, 10 hrs in the mail mines. The Hag showed at 6 and the swoop through, I've never seen her without the UGLY coat. C'mon voo doo doll work your magic. 27

28 Click Harassment to edit Via Master Social title Media style Canada Post Corp v CUPW, [2012] AWLD 2981 (Alta Arb) There is ample case law that supports the principle that what employees write in their Facebook postings, blogs, and s, if publicly disseminated and destructive of work relationships, can result in discipline. The fact that the grievor was under a misapprehension about who could access her Facebook site, did not relieve her from the responsibility of what she wrote. Termination upheld. 28

29 2D. Specific Issues: Misuse Harming Employer Reputation 29

30 Violation of Internet Use Policy Click to edit Master title style Blogging Photos Thomas v. IBEW Union 424 (Alberta 2011) Electrical apprentice working on the oil sands. Posted blogs about conditions in work camp. Complained about cleanliness of washrooms and limited menu selections resulting in deficient diet. Supported his complaints by posting pictures and videos of the facilities online. Terminated. 30

31 Violation of Internet Use Policy Click to edit Master title style Blogging Photos Thomas v. IBEW Union 424 (Alberta 2011) Site operator s policy expressly prohibited taking of photographs and videos. Employee brought grievance contesting his termination. Grievance dropped when union determined it had little chance of success. Duty of fair representation complaint against union similarly dismissed. 31

32 Violation of Internet Use Policy Click to edit Master title style Blogging Photos Thomas v. IBEW Union 424 (Alberta 2011) Takeaway: Clear employer policy saved the day Policy specifically identified zero tolerance 32

33 Click Embarrassing to edit Master Statements title style by Operator Account operator fails to switch between personal and business account: Account operator uses poor judgement: Autopilot scheduled releases causes bad timing: 33

34 2F. Specific Issue: Misuse Breaching Third Party Rights Disclosure, Defamation, and Intellectual Property

35 Click Disclosure to edit of Master Confidential title style Information Employers may be liable for confidentiality breaches caused by employees Social media invites deliberate and accidental disclosure: Posting photos from recognizable locations or disclosing confidential information (e.g. prototype of device that is to be patented) Unintentional disclosure of location (GPS-enabled device used to post on social media) 35

36 Click Defamation to edit and Master Social title Media style Defamation (libel/slander) lawsuits on the rise because of defamation on social media Employers can be liable for employee conduct where done so in course of employment Can be from employer account or employee account Example: NBA referee sued Associated Press for reporter s tweet: "Ref Bill Spooner told Rambis he'd 'get it back' after a bad call. Then he made an even worse call on Rockets. That's NBA officiating folks. AP settled for $20,000 36

37 Click Intellectual to edit Property Master and title Social style Media Mejia v. LaSalle College International Vancouver Inc., 2014 BCSC 1559 (Copyright) Sessional professor at LaSalle College terminated for professional unacceptable behavior. Claimed for wrongful dismissal, defamation and copyright infringement LaSalle had used photograph taken by Mejia on it s Facebook page Copyright-protected work was photo taken by Mejia at LaSalle classroom and of a LaSalle student participating in a LaSalle event Photograph not taken in course of duties because Mejia was a professor, not photographer Granted minimum statutory damages of $500 Statutory damages are per work damages for a photo album could have easily been in 10s of thousands 37

38 3. Conclusions + Recommendations 38

39 Prevention: Policies, Education and Click to edit Master title style Monitoring Develop a social media policy / technology use policy Risk identification Assign responsibility for policy reviews, refreshes and enforces Include in the policy: Who owns the systems (the employer/organization) Candor with employees - no expectation of privacy in & Internet use on company system Acceptable & unacceptable uses Consequences of inappropriate use On-going reminders and training Specialized training / education for account operators Ex-employees Acknowledgment by employees 39

40 Click Investigations to edit Master & Discipline title style Conduct Investigations with Care Approach from perspective avoiding future dispute Ensure that requests for information are reasonable and sufficiently related to business purposes Ensure that privacy is intruded as minimally as possible Obtain consent from employees whenever possible Pay attention to collective bargaining agreement Discipline Properly justify and obtain counsel 40

41 Click Thank to you! edit Master title style Thanks for attending! Please note that the information contained in this presentation is general in nature and does not constitute legal advice, nor is it exhaustive on the subjects noted. Questions? 41

42 Click More Resources to edit Master title style Relevant MLT Blogs: MLT Privacy Blog MLT Technology Blog MLT Employment Blog MLT Intellectual Property Blog 42

43 Click to edit Master title style REGINA 1500 Hill Centre Scarth Street Regina SK S4P 4E9 Phone: SASKATOON 1500 Saskatoon Square nd Street East Saskatoon SK S7K 5T6 Phone: CALGARY 1600 Centennial Place rd Avenue SW Calgary AB T2P 0R3 Phone: EDMONTON Suite 2200 st Street Edmonton AB T5J 3G1 Phone: VANCOUVER Suite Burrard Street Vancouver BC V6C 2G8 Phone: