Canadian Employment Law Today

CELT November 13 2013:celt 467.qxd 13-10-25 10:56 AM Page 5 CANADIAN EMPLOYMENT LAW TODAY CASE IN POINT: TECHNOLOGY Employer can track when its name is mentioned online ...continued from page 4 Have an Internet use and social media policy. A clear, direct Internet and social media policy is essential as a means of communicating to employees the limits of acceptable online communication and conduct. When and how to introduce a policy into the employment relationship (or amend an existing policy) depends on several factors which should be discussed with experienced employment counsel. At the very least, an effective Internet use and social media policy should outline permitted and prohibited uses of workplace technology and social media. This includes advising or reminding employees of the following: • They should have no expectation of privacy as it relates to the use of company technology • The employer has the right to monitor computer usage within and about the workplace • The employer monitors social networking sites (if accurate) • The limits to Internet use during work time (total prohibition is rarely reasonable or practical) • Online communications may be seen by anyone (including the employer, coworkers and members of the public) • The prohibition on publishing negative comments, not only about the employer, other employees, or customers, but any comments that may negatively affect the employer's reputation (defamatory, offensive, threatening or harassing) • The prohibition on disclosing confidential information about the company, employees or customers • Applicable, companion policies, such as harassment, confidentiality, conflicts of interest and privacy • The process for addressing complaints • Violation of the policy may result in discipline, up to and including termination for cause. Monitor usage. An employee who believes Internet misconduct cannot be seen has less of an incentive to behave, which is why monitoring Internet and social media use inside and outside of the workplace is the second essential step. Inside the workplace requires the implementation of technology that has been available for years, and is not expensive. This technology can track time spent online, sites accessed, and content downloaded and uploaded (such as confidential company information and personal customer or employee information). Outside the workplace provides the ability to monitor public social media communications around the world, identifying those which fit a profile the employer determines it wants or needs to track. For example, an employer may determine it should be alerted every time the organization's name is mentioned in a public tweet, blog or social media forum. In both cases, whether tracking activity from within or without the organization, it is important to implement methods that are the least intrusive as necessary to achieve reasonable business ends. Implement and enforce. Even the best written policy is of little significance if not implemented properly. In our experience, a well implemented policy has four key components: • Relevance: Management and employees should be educated on how and why the policy is relevant to and will apply to their day-to-day responsibilities. • Proportionality: The impact of the policy must be reasonable and rational; neither overreaching nor attempting to attain a "gold standard" that may not be necessary. • Consistency: The policy must be applied consistently and fairly so as not to lose credibility within the workplace. • Flexibility: The policy must be a living document, able to adapt to and reflect the organization's business realities as they may change from time to time. Final thoughts For better or for worse, the Internet and social media have become a workplace reality. The objective for employers is to harness the benefits of this exciting technology, while at the same time protect the business from its dangers. This can be accomplished by having a clear and unambiguous Internet and social media policy, monitoring Internet and social media usage as it relates to the workplace, and enforcing the Internet and social media policy consistently and fairly. CELT ABOUT THE AUTHOR Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. Recent topics include restrictive convenants in the wired world, vacation right before a resignation date, the dangers of assuming older workers want to retire, bereavement leave, misconduct by long-term employees, perception of harassment and balancing employee family obligations. You can view the blog on www.employmentlawtoday.com. Curtis Armstrong Curtis Armstrong is a lawyer with Sherrard Kuzz LLP, a management-side employment and labour law firm in Toronto. Curtis can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 Hour) or by visiting ww.sherrardkuzz.com. Published by Canadian HR Reporter, a Thomson Reuters business 2013 5

• Cover