Canadian HR Reporter

CANADIAN HR REPORTER August 7, 2017 FEATURES 17 EmploymentSource™ Works as hard for you as you do for your clients Our premier employment content on WestlawNext® Canada is integrated with relevant case law, legislation, expert commentary and legal memos, allowing you to manage your practice in the most efficient way possible. It's the complete mix of resources you need to confidently advise on compliance, defend occupational and health and safety charges, or prepare successful dismissal or termination strategies. Search across multiple content types simultaneously Instantly evaluate what a claim is worth with the Wrongful Dismissal Quantum Service, an interactive service with report-building functionality Review exclusive commentary by Canada's foremost employment and occupational health and safety law experts Start ahead − and stay ahead − with our exclusive collection of legal memoranda Keep current with two leading employment and dismissal law newsletters and digests For a free demonstration, call 1-866-609-5811 or visit westlawnextcanada.com/employmentsource 00233WZ-52632 SOCIAL MEDIA Avoiding the risks An outline of steps employers can take to avoid the pitfalls of social media By William Watson and Susan MacMillan I t's 2017 and social media has never been more popular. Many people use social me- dia accounts daily — and em- ployees and employers are no exception. But social-networking sites are rife with offensive behaviour and inappropriate images. So it's not surprising that an employee's online "bad behaviour" can nega- tively impact her employer. More surprisingly, an employ- er's use of its own accounts can also be problematic. Taking proactive steps is the only meaningful way to minimize a company's exposure to both sources of risk. "But it's my personal account" Many workers don't see a con- nection between their social me- dia presence and their job. is is particularly true when employees are online outside of work hours — their perception is they ought to be entitled to do what they want and say what they want. But employers are increasingly being identified in relation to on- line bad behaviour by employees. Toronto Fire Services, Hydro One and Postmedia are among a grow- ing number of employers whose names were in the headlines after employees' inappropriate tweets or behaviour outside of work hours emerged in the media or went viral. Employees, or their unions, may also take deliberate action in the cyberworld to make an em- ployer look bad. For example, last December, the union represent- ing pilots at Amazon's air freight delivery partner went online to warn customers the pilots needed a fair contract, otherwise orders would likely not be delivered in time for the holidays. is action was clearly meant to damage Amazon's reputation and business. Legal risks still taking shape New developments in privacy law are rapidly emerging, includ- ing novel responses to disturbing trends on the Internet. For example, in 2016, a new privacy tort, "public disclosure of embarrassing private facts," was introduced by the Ontario Superior Court in an undefended motion in Jane Doe 464533 v. N.D. While the decision has since been set aside to be determined at a full hearing with both parties in atten- dance, it wouldn't be surprising to see this tort applied again when the Jane Doe case is reheard, or in another case. e tort of "intrusion upon se- clusion," established by the Ontar- io Court of Appeal in 2012 in Jones v. Tsige, is another recent protec- tion against invasion of personal privacy. Companies are at risk of being brought into such actions if the plaintiff can argue the employer was vicariously liable for the ac- tions of its employee. Educate employees A comprehensive social media policy is the best way to make employees think twice before they tweet or otherwise express them- selves on social media. e policy should specify: • who it applies to (in addition to employees, consider includ- ing contractors or others whose communications could reflect on the company) • what employees can and cannot do (for example, don't connect social accounts to work email addresses, don't use social media for internal communications and don't bad-mouth the company) • allowable conduct on personal devices outside of work hours • what disciplinary measures will apply. It's also important to define "so- cial media" broadly to avoid leav- ing the door open for employees to argue they didn't know a par- ticular form of social media was covered. Employees also need to be trained and retrained regularly on the policy, and should sign off their agreement with the terms. Employer use can also attract risk Employers are capitalizing on social media for brand building, increasing their visibility in the market, communicating with customers and stakeholders, re- cruiting new talent, and more. But there can be risk associated with some of these practices. In a recent decision, a labour ar- bitrator found the Toronto Tran- sit Commission (TTC) liable for failing to protect its workers from harassment and discrimination on its Twitter account. e TTC had set up the account to respond to passengers' questions and com- plaints. e union sought to shut it down and produced hundreds of tweets from passengers that were abusive, racist, homophobic, threatening or discriminatory. While the arbitrator agreed it would be difficult — if not impos- sible — for the TTC to regulate di- alogue on social media platforms such as Twitter, that was not a defence to workplace discrimi- nation or harassment. Although decided in an arbitration context, the principles of the TTC case can also be applied outside of a union environment. As a result, all employers should take reasonable steps to address harassing or discriminatory com- ments directed at workers on their social media accounts, including: • monitoring their accounts • responding to uncivil, abusive or threatening online posts target- ing workers • demanding that users immedi- ately delete any offensive post, or face being permanently blocked • ensuring policy sets out how to deal with such posts. Social media background checks A background check on a pro- spective employee can be as sim- ple as viewing an applicant's Face- book profile or as complicated as hiring someone to conduct an extensive search. While checking these sites for information may seem easy and effective, the reality is there are a number of risks associated. Often, there is no way of determining if the information collected is accu- rate or current. For example: • names may be incorrectly listed on photographs or elsewhere • photographs and other informa- tion might be several years old • the individual performing the check might guess which social media account matches the can- didate's name. Worse, the individual perform- ing the check might screen out a candidate based on information related to a prohibited ground of discrimination under human rights legislation. Basing a hiring decision on one or more of these grounds (such as age, race, gender, physical dis- ability or sexual orientation) can result in liability. Social media background checks may also breach applicable privacy legislation because there is only a limited ability to control the amount of information col- lected, which may result in the collection of irrelevant or exces- sive information about an individ- ual, or of third-party information. Takeaways Employers need to be proactive in addressing social media issues by establishing, reviewing and updating a robust social media policy that educates employees on what online conduct is permitted and prohibited, and setting out the do's and don'ts of social media use. The law is constantly evolv- ing in terms of social media. It's necessary to stay on top of policy — be sure to diarize an annual or semi-annual review and make any updates needed. Both at Baker McKenzie in Toronto, William Watson is a partner and Su- san MacMillan is a professional sup- port lawyer. For more information, visit www.bakermckenzie.com.

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