Dynamic Duo Advantage TJ and Taryn have partnered up to offer: - - PowerPoint PPT Presentation

Dynamic Duo Advantage…

• TJ and Taryn have partnered up to offer:
• Legal analysis + practical HR application
• Social Media is about legal compliance, good HR

management practices and common sense

• Our goal is to impart all three with clear, practical tips
• We want to engage you … AND have a little fun

exploring this interesting and evolving topic

• We are also gonna ask you to participate with your

smartphones (stay tuned!)

What’s On Our “Wall” Today…

• Social Media: Pre-Employment Period
• Social Media Background Checks
• B.C. Privacy Commission Guidelines on Checks
• Social Media: During Employment
• Where Social Media Intersects with Work
• Examples of behaviour that crosses the line
• Cyber-bullying and the Workplace
• Effective Workplace Social Media Policies
• Social Media: Broader Considerations
• Post-employment considerations
• Brand, Info & Reputation Protection

What’s Being “Posted”: Social Media Statistics…

The news headlines and examples are not surprising given the 2013 statistics:

• 1 out of 3 Canadians surveyed reported to checking their

social media feeds at least once per day;

• 63% of internet users, and 93% of social media users have

a Facebook page;

• Nearly 7 out of 10 Canadians surveyed identified

themselves as regular users of social media generally

Source: Media Technology Monitor

What’s Being “Posted”: Social Media Statistics…

• In July 2011, Ipsos Reid reported that:
• 50% of all Canadians have a social media profile
• 86% of Canadians ages 18 – 34 have a social media

profile

• 62% of Canadians ages 35 – 54 have a social media

profile

What’s Being “Posted”: Social Media Statistics…

• 181,000,000 blogs on internet
• 645,750,000 active Twitter users
• Over 400,000,000 Tweets Daily
• 4,000,000,000 YouTube Videos viewed daily
• 350,000,000 photos uploaded to Facebook daily
• 15 hours and 33 minutes per month
• Average time users spend on Facebook

Yes, we want you to turn on your phones

• Step 1: Turn on your cell phone. Seriously.
• Step 2: You will see a question soon appear on

this slideshow, alongside a Code #

• Step 3: Text your answer to 37607 (Alberta

area code) or log on to PollEv.com

• Step 4: Sit back, and watch the Poll results.
• Note: Your standard text message rate will

apply, BUT your number will be kept private

This is only a Test…. How many social media accounts (e.g. Facebook, Twitter, LinkedIn, Instagram…) do you have? (a) Zero (b) 1-2 (c) 3 or more POLLEVERYWHERE SLIDE HERE

The (Inter)Net Result….

• Social Media use, and misuse, significantly affects

today’s workplace and raises a number of questions for employers:

• Can I use a social media background check?
• When is off-duty social media use by an employee

disciplinable?

• Do I need a workplace social media policy, and, if

so, what are the best practices?

• Should I worry about employees cyber-bullying?
• How do I deal with ex-employees?

Social Media & the Pre-Employment Period

• Reference/background checks are critical tools in

assessing a candidate’s suitability for employment

• Background checks come in a variety of forms:
• criminal record checks
• credit and consumer reporting checks
• motor vehicle record checks
• educational/credential checks, etc.
• Employers now frequently turning to social media
• Consider postings, photos, blogs, comments
• What rights and obligations does an employer have?

Poll Question I use Google or Social Media to look up/check out job candidates before hiring Yes or No POLLEVERYWHERE SLIDE HERE

Social Media & the Pre-Employment Period

• Two legal factors should guide your way:
• BC Human Rights Legislation
• Prohibits discrimination on the basis of a number of

grounds, including criminal charges/convictions unrelated to the job

• BC Privacy Legislation
• Restricts the collection of personal information to what

a reasonable person would consider appropriate in the circumstances, regardless of whether you had consent

• Meaning: (a) Be reasonable with your search/check; and, (b)

know you may not be able to make a hiring decision based on what you find in social media

Social Media & the Pre-Employment Period

• BC private sector privacy legislation does not require

consent when the collection of personal information is for “…establishing… an employment relationship between an

• rganization and an individual”;
• BC public sector privacy legislation similarly permits a

public body to collect personal information if the information “relates directly to and is necessary for a program or activity of the public body” (e.g. employment);

• There are basic notification requirements, however, under

both legislations

• See PIPA, s.10
• See FOIPPA, s.27(2)

Social Media & the Pre-Employment Period

• “Best Practice” is to obtain consent BEFORE

conducting a typical background check (including with respect to what you are checking):

• This allows an employee to inform their current

employer BEFORE they are contacted

• Shows the employer is transparent, fair and reasonable
• Are social media checks any different?
• Wellllllllll… there are two sides to this coin…

Social Media & the Pre-Employment Period

• IF information is publically available (i.e. open access/no

privacy settings) and searchable on the internet then this information may NOT be, strictly speaking, private

• BUT, BC’s privacy legislation dictates that employers should:
• Limit the collection of personal information to what is relevant,

appropriate, reasonable and necessary to fulfill a valid purpose

• BC Privacy Commissioner also points out social media checks

can lead to a number of risks, including collecting:

• inaccurate or irrelevant information (over collection)
• information on third-parties
• information that legally cannot be used to make decisions (e.g.

unrelated criminal offences)

Social Media & the Pre-Employment Period

• A balanced and considered approach is needed to when

conducting social media background checks:

• Do not simply rely on the principle that the information may be

publically available. Recognize the risks and plan to reduce them;

• ALWAYS strive to be the “reasonable employer”
• BEST PRACTICE – State on application forms or your website that you

perform social media checks

• This is a form of notice. It’s fair warning. It’s reasonable.
• Recognize that this area of the law is rapidly evolving
• Consult with the Privacy Commissioner’s guidelines
• Speaking of guidelines… let’s review those now!

Social Media & the Pre-Employment Period

• October 2011 - BC’s Privacy Commissioner published

guidelines for organizations and public bodies using social media sites for background checks of prospective employees, volunteers and candidates

• Guidelines are not, strictly speaking, binding…but…
• Employers are still expected to act reasonably, and

following guidelines generally part of that expectation

What the Privacy Commissioner Says...

• The Guidelines identify exactly how employers can search

social media sites:

“There are many ways that employers can search for social media content about an individual. Micro-blogging sites like twitter have real-time search engines (twitter.com/#!/search-home) and sites such as Google Advanced Search (google.ca/advanced_search) filter results by criteria such as domain name and file type. …Employers can search for information from blogs using customized search engines like Google blogs search (www.google.com/blogsearch)...”

Privacy Commissioner Guidelines...

• Recommend employers conduct a privacy impact assessment

before performing social media checks that includes:

• What privacy law applies?
• Identify the purposes for collecting personal info via social media;
• Determine whether the purposes are valid, justifiable and

authorized by privacy or human rights legislation;

• Consider other, less intrusive measures to fulfill your purposes;
• ID risks (e.g. over collecting or collecting inaccurate info) and put plan

together to minimize risk;

• Provide notice to individuals you may check what’s publically

available

• Remember individuals can complain to Privacy Commissioner…

Can You Ask for Passwords and Logins?

• Many US examples where employers have required job

candidates to provide Facebook login information

• California, Delaware, Illinois, Maryland, Michigan, and New

Jersey purportedly issued laws prohibiting employers from demanding social media passwords from potential employees

Can You Ask for Passwords and Logins?

• BC Privacy Commissioner 2013 Keynote Presentation noted:

While I can’t comment on the legality of a hypothetical situation... it is difficult to contemplate a scenario in which BC privacy law would authorize a public or private sector employer to require an employee to provide a Facebook password. …… Consent is not the silver bullet. This provision is extremely important because even if an employer obtains the consent of a prospective employee to use their Facebook password, I can’t see how a reasonable person would consider it a legitimate use.

Can You Ask for Passwords and Logins?

• BC’s Privacy Commissioner DID consider whether the BC NDP

could ask party leadership candidates for their Facebook login

• information. The Commissioner noted:

Some candidates consented (perhaps reluctantly) but at least one refused to provide his password. This prompted an investigation by

• ur office and we ultimately concluded that the NDP had violated

PIPA by collecting the candidates’ passwords. Our analysis into the NDP matter relied heavily on an often

• verlooked, but extremely important, tenet of our privacy laws. I’m

talking about the overriding “reasonableness” standard. In BC, this principle states that “in meeting its responsibilities under the Act, an organization must consider what a reasonable person would consider appropriate in the circumstances.

Making Sense of Social Media Checks...

• The governing test will always be one of reasonableness
• Always remember W.W.W:
• Why am I accessing this social media site?
• What am I doing with the information that I collect from

this site (purpose and retention)?

• Where have I notified candidates I will be “Googling”?
• Bottom line…
• As social media checks become more common, so too will

challenges to an employer’s reasonableness

• Therefore, be ready to respond to human rights and privacy
• allegations. Show you are the reasonable employer!

Poll Question Trending now... What workplace related issues have you seen arise out of social media use (or misuse) in organizations during the employment relationship? Please type your answer to: POLLEVERYWHERE SLIDE HERE

Social Media & the Employment Relationship

• Workplace issues that arise from social media use or

misuse include:

• Improper use of company time and equipment
• Including “stealing time” or “fraudulent sick leave”
• Harassment (both personal harassment and

discriminatory harassment)

• Insolent or insubordinate behaviour
• Breach of confidentiality
• Cyber-bullying
• Defamation

Basic Employment Principles Still Apply to Cyberspace

• Employees owe duties of loyalty, fidelity, and

confidentiality to their employer

• Social media activities in breach of those duties are

grounds for discipline up to and including termination

• f employment
• The fact the misconduct was done on the employee’s

personal time and/or using the employee’s personal computer or equipment is no excuse

• Let’s talk some more about off-duty conduct…

The Line…When off-Duty Conduct Becomes a Workplace Issue…

• Employers generally cannot regulate what employees

do off-duty, on their own time… BUT…

• Canadian Courts and arbitrators have consistently

found that off-duty conduct becomes a workplace issue if:

• (a) There is “…a real and material connection to the

workplace”; and,

• (b) Employer suffers some kind of harm.

When off-Duty Conduct Becomes a Workplace Issue…

• Links to an employer can be made through social

media in many ways, including:

• Profile listing the employer’s name or logo

When off-Duty Conduct Becomes a Workplace Issue…

• Links to an employer can be made through social

media in many ways, including:

• Postings that include employer identifiers
• NOTE ALSO, postings can be from the “page owner” or

from “friends” that identify owner’s employer

When off-Duty Conduct Becomes a Workplace Issue…

• Links to an employer can be made through social

media in many ways, including:

• Pictures showing signage, uniforms etc.

When off-Duty Conduct Becomes a Workplace Issue…

• Links to an employer can be made through social

media in many ways, including:

• Videos showing signage, uniforms, etc.

[Insert McDonalds ice-cream clip]

When off-Duty Conduct Becomes a Workplace Issue…

• Employer’s can suffer “harm” in numerous ways

including:

• Embarrassment/damage to reputation
• Damage to a brand, lost revenue, lost customers etc.

When off-Duty Conduct Becomes a Workplace Issue…

• Employer’s can suffer “harm” in numerous ways

including:

• Breach of trust between employee – employer

When off-Duty Conduct Becomes a Workplace Issue…

• Employer’s can suffer “harm” in numerous ways

including:

• Lost productivity due to personal social media activities

during work. Consider this:

• US Software developer dismissed after it was discovered he had
• utsourced his own job to programmers in China
• Busted after the company noticed that their servers were being

accessed in China; company assumed it was being hacked

• Developer paid the programmers 1/5th of his salary and required

them to work through the night to accommodate the time zone difference

• Spent his free work time watching cat videos on YouTube

When off-Duty Conduct Becomes a Workplace Issue…

• Lost productivity due to personal social media activities

during work. Consider this:

• Employee fired after engaging in “excessive online dating” during

work hours

• Employee discovered after she claimed significant overtime
• Employer investigated why she was unable to complete her daily

tasks

• She’d been previously warned to limit her personal social media

use at work

When off-Duty Conduct Becomes a Workplace Issue…

• Other forms of “harm” an Employer can suffer include:
• Variety of consequences of Cyber-bullying
• WorkSafeBC obligates employers to prevent workplace

bullying and harassment

• Increased workers’ compensation claims under Bill 14
• “Poisonous workplace” could lead to constructive dismissal
• Cyber-bullying Case Example:
• Falsely accusing an employee of “stealing her job” and cyber-

bullying: Re Walder, [2010] B.C.E.S.T.D. No. 113

Poll Question How many of you have witnessed or become aware of inappropriate social media use during work time? E.G. Excessive use of social media to the detriment of the work day E.G. harmful/embarrassing comments or content POLLEVERYWHERE SLIDE HERE

Social Media Behaviour Crossing the Line

• A friendly reminder from your dynamic duo…

Let us not forget: Employers may be liable for the actions of their employees if those actions occurred in the scope of their employment

• This is the principle of vicarious liability
• Given this liability, employers must take reasonable

steps to prevent and address inappropriate “scope

• f employment” behaviour when it arises

Social Media Behaviour Crossing the Line

• Calling the employer a “crook” and a “scumbag”, and

recommending Facebook friends go to the competitor: Lougheed Imports

• Posting confidential information: Chatham-Kent;

Credit Valley Hospital

• Posting about creating supervisor voodoo dolls and

“lovin my indefinite suspension”: Canada Post Corp.

• Posting racist comments on Facebook:

Moreno v. Kulczycki

• Derogatory postings about employer and their primary

client group (First Nations): Wasaya Airways

Social Media Policies – Necessary?

• Short Answer: ABSOLUTELY! A MUST!
• Create clear expectations and standards
• Benefits:
• Avoid issues; and if something comes up, employee can

effectively be held accountable

• Provides protection for an employer brand
• Helps employer comply with the law, including appropriate:
• Limited collection of information
• Procedures to prevent, reduce or address bullying /harassment
• Manage human rights compliance
• Reduces an employer’s vicarious liability

Elements of Effective Social Media Policies

• Remind employees that employment duties and all

policies still apply. Social media users:

• Must adhere to all policies (Codes of Conduct, Conflict of

Interest, Respectful Workplace etc.)

• Are responsible for content on their page, profile etc.
• Social networking not on work time or on work computers

unless required for the job

• OR set personal use boundaries that fit your workplace
• Should be reminded that social media is rarely “private”
• Employers may monitor work computer activity (with

appropriate “forewarning Policy”)

Elements of Effective Social Media Policies

• Additional aspects of good policy/ procedure include

limiting social media users from:

• Disclosing confidential or proprietary information
• Implying or representing the employer
• Embarrassing or “harming” their employer or the brand
• Treating other employees disrespectfully
• Policy should warn of consequence for breach
• Including discipline and possible personal liability
• Employee signature - “read and understood” policy
• NOTE: HRMA’s social media guidelines www.bchrma.org

Elements of Effective Social Media Policies

• Be clear on who can “speak”, “tweet”, “post” etc.
• n behalf of the employer
• ALSO, ensure clear controls on:
• Who has access to employer social media accounts
• Ensure organization is “password administrator”
• Carefully consider procedures for securing social

media accounts before terminating employees who have access

Social Media is Not all Bad for Employers

• Social Media can be a very useful tool for:
• Recruitment
• Communication with employees (e.g. scheduling)
• Workplace investigations
• Remember to print or

capture screen shot

Poll Question How many of your employers have either used social media in an investigation for employee misconduct OR activities on social media (e.g. claiming to be sick but photos of waterskiing etc. posted) have triggered an investigation into possible misconduct? Yes or no POLLEVERYWHERE SLIDE

Social Media: Broader Considerations

• Post-employment considerations
• Does contract contain:
• Confidentiality and non-disparagement clauses?
• If not, consider adding them as part of departure
• Broader Considerations
• Consider steps to protect brand, information and

reputation

• Policy part of the answer, BUT also:
• Limiting access to employer social media accounts
• Educate employees on how “harms” can harm employer
• Employers must monitor social media content regularly
• Prepare contingency and crisis plans for social media “faux

pas” events

Final Thoughts on Social Media

• What’s uploaded or posted is typically:
• Permanent (even if supposedly deleted)
• Search-able
• Spread-able (re-tweet, re-post, forwarded…)
• Revive-able (can be re-ignited, spun or popularized
• We should all keep this in mind AND make sure

this is ALSO top of mind for our employees

Any Questions?

Thank you for joining us! TJ Schmaltz & Taryn Mackie

Reflection on our Presentation

What are the key insights you derived from this session, and how can you implement them in your workplace?