social media in the workplace: the employer’s...

Social media in the workplace: the employer’s challenges

Mtre Mohamed Badreddine Fasken Martineau LLP Office: (514) 397-4393 / Cell.: (514) 332-7455 [email protected] May 15, 2015

Presentation

1.  Types of social media

2.  Social media and human resources management

a.  Legality of the pre-employment verifications b.  Legality of the evidence emanating from social

media c.  Management of the internet use in the workplace d.  Management of passwords and ownership of social

media accounts e.  Company policies with respect to social media

1. Types of social media

A few statistics…

Q uelques statistiques sur l’utilisation des médias sociaux…:

• 71,7% of adults in Quebec use social media.

• 52,5% of subscribers connect to social media every day.

• Facebook is the most visited social media: 48,9% of users connect to the platform every day.

Facebook

• Created in 2004 in Harvard.

• This social media enables subscribers to exchange messages and pictures and to create different groups.

• It is the second most visited website in the world (with 1,4 billion active users in 2014).

• 1 billion items (posts, pictures, videos) are posted online every day !

Twitter

• Created in 2006 in San Francisco.

• Subscribers use it to send and read short 140-character messages called "tweets".

• The most followed twitter account today is Katy Perry’s (@kattyperry) with more than 67 million followers.

• In total, 517 million accounts were created in 2012.

LinkedIn

• Created in 2002 and launched in 2003 in California.

• This social media facilitates professional networking by enabling users to search for job offerings, to do online recruiting, business development, etc.

• In 2014, LinkedIn number of users increased to 400 million members.

2. Social media and human resources management

A. Legality of pre-employment verifications

One third of employers admit to have dismissed candidates based on information obtained from social media. The most common reasons invoked by employers are :

ü  Pictures or inappropriate information (53 %) ü  Evidence indicating that the candidate

consumes alcohol or illicit substances (44 %) ü  Critics towards a previous employer or a

colleague (35 %) ü  Poor communication skills (29 %)


•  At the recruitment stage, an employer is entitled to gather and rely on information from social media profiles.

•  However, this right is not without limits.

•  In Quebec, the provisions of the Civil Code, the Charter of Rights and Freedoms (the “Charter”) as well as the Act Respecting the Protection of Personal Information in the Private Sector (the “Act”) limit the employer’s right in this regard, particularly concerning the way the collected information can be used.


•  In the pre-employment context, the following principles are fundamentals :

ü  Every person has the right to the respect of its reputation and privacy (art. 35 C.c.Q.)

ü  Every person has a right to respect for his private life (art. 5 of the Charter)

A. Legality of pre-employment verifications •  What is a personal information under the Act ?

ü  ‘‘Personal information is any information which relates to a natural person and allows that person to be identified.’’ (s. 2 of the Act)

ü  In other words, any information that :

1.  makes something known to another person;

2.  is linked to a physical person; 3.  is susceptible of distinguishing the person

from another person.


• An employer may therefore establish a file on potential candidates, but some criterias remain required :

ü « Any person carrying on an enterprise who may,

for a serious and legitimate reason, establish a file on another person must, when establishing the file, enter its object.» (s.4 of the Act)


• What is a « serious and legitimate reason »? ü The employer must be able to show that the

collection of information is more useful to him than it is prejudicial to the employee.

ü The collection of information must be done in a transparent manner.

ü The means used for the collection of information must be legitimate and licit.

A. Legality of pre-employment verifications • The Quebec Commission d’accès à l’information (CAI)

defines the notion of “necessary information” (in the pre-employment context) as follows :

ü  An employer is only permitted to request information that is necessary to evaluate whether a candidate possesses the qualifications and skill set for the position applied for;

ü  The information will vary according to the nature of the position and profile. Generally, necessary information relates to education background, professional qualification, work experience and other required specific qualifications.


• The candidates must also give their express and voluntary consent to the collection and the use of their personal information. • However, consent could be considered inherent to the

gestures or actions posed by the person on social media, e.g. the failure to activate privacy settings on a Facebook page. • Also, the creation by the employer of a social media

account for the sole purpose of obtaining information on a candidate could be problematic with respect to the consent requirement.

• The employer should therefore remain cautious in these cases.

A. Legality of pre-employment verifications • Once a candidate is being hired thought, the notions of

consent and right to privacy must be relativized. • To date, tribunals have decided, in a clear majority of

cases, that employees do not have an expectation of privacy on the internet, except in exceptional circumstances.

• According to tribunals, a person who owns a Facebook account can allow his “friends” and their “friends” to read his comments. If this person can control the list of his Facebook friends, it is more difficult for him to control the access to his profile by the friends of his friends, a list that can be extended infinitely. This situation is far from giving a private character to the person’s profile or to the comments posted by this person.

A. Legality of pre-employment verifications • The provision of the Charter are to the effect that an

employer may not discriminate in its hiring practice, with respect to the prohibited grounds of discrimination (race, color, sex, pregnancy, religion, handicap, …, etc.).

• This restriction applies to information found on social media during the hiring process.

•  A refusal to hire on the basis of information mined from a social media profile could be sanctioned by the courts if the information relates to one of these prohibited grounds of discrimination.

A. Legality of pre-employment verifications A few advices…

ü In order to avoid any future disputes, make sure your decision not to hire a person is not based solely on the information found on his social media profile.

ü All other reasons justifying your decision to reject an applicant’s candidacy should be clearly indicated, in writing, in the candidate’s file as well as in the correspondence.

B. Legality of the evidence emanating from the social media

i.  Production of evidence by the employee: • Proof generated by the employee: not admissible,

except to conform with the necessity and reliability criteria, as it would otherwise be a self-serving evidence.

• Proof generated by third parties: admissible, but subject to a clear identification of the author.


ii.  Production of evidence by the employer:

•  If the page displayed is public: admissible, as long as the content is relevant.

• However, if the social media page is private:

ü  Licit access (by request or invitation, for instance): admissible.

ü  Illicit access (by hacking, for example): inadmissible if the conditions of access infringe the fundamental rights and freedoms of the owner of the account and if the use of the information obtained is likely to discredit the administration of justice.

B. Legality of the evidence emanating from the social media Campeau et Services alimentaires Delta Dailyfood Canada inc., 2012 QCCLP 7666

Facts :

• During the hearing, the employer’s representative produced an extract of the employee’s Facebook account.

• The employee’s attorney opposed the admissibility of the evidence because the employer had created a fictitious account in order to become “friends” with the employee.

B. Legality of the evidence emanating from the social media Finding : • The employer has used a subterfuge and indirect

means in order to become “friends” with the employee on Facebook. Therefore, the employer did not access public information.

• This has been considered a serious infringement of the rights and freedoms guaranteed by the Quebec Charter.

• The evidence collected on the Facebook profile of the employee was therefore inadmissible.

B. Legality of the evidence emanating from the social media Garderie les « Chat » ouilleux inc. et Marchese, 2009 QCCLP 7139 Facts : • The employer contested the CSST’s decision, which

concluded that the employee suffered a work injury and was entitled to CSST benefits;

• The precise circumstances of the employee’s alleged workplace injury is suspicious. In effect, the employee alleged that she “pulled a muscle” after picking up children at the employer’s daycare;

• The employee alleged that she had back problems which restricted certain movements;

B. Legality of the evidence emanating from the social media Facts : • During the hearing, the employer sought to introduce

evidence containing photographic extracts from the employee’s Facebook profile:

“[…] Photographs taken from the week on vacation (in the Dominican Republic), gathered from the employee’s Facebook profile, were printed by the employer and produced during the hearing. The photographs of the employee, in the company of her friends, clearly show the employee in different positions and engaging in certain activities (swimming, aerobics). These photographs clearly show that the employee did not suffer or have any difficulty in certain movements.” [Our translation].

B. Legality of the evidence emanating from the social media Finding : • The CLP reversed the CSST’s decision to confer

indemnification. The CLP concluded that the employee did not suffer from a work injury.

• The photographs extracted from the employee’s Facebook profile were deemed to constitute credible evidence and were key elements in leading the CLP to conclude that the worker did not suffer from a work injury.

B. Legality of the evidence emanating from the social media Fortin et Cimon (Clinique dentaire St-François), 2015 QCCRT 0046 Facts :

• The plaintiff was absent from work for medical reasons.

• During her invalidity period, the employer got pictures of the plaintiff from her Facebook page. These pictures showed that the plaintiff was in fact not invalid during that period.

• The plaintiff opposed the production of these pictures in evidence.


Finding :

• During the hearing, the plaintiff brought, in support of her argument, a decision from the Commission des lésions professionnelles in which the judge commented the pictures.

• Therefore, the plaintiff “opened a door” for the production of the pictures as evidence in support to the employer’s position. The pictures have therefore been considered admissible against the plaintiff.

B. Legality of the evidence emanating from the social media Canada Post Corporation and Canadian Union of Postal Workers, [2012] C.L.A.D. No. 85 Facts :

• The Plaintiff has been employed at Post Canada for 31 years. • She was fired following the discovery, by the employer, of

disparaging comments against her supervisors and her employer, which were displayed on her Facebook account for a month, such as: “DIE BITCH DIE”, “run her over”, “Surprised Evil D”, “WRONG AGAIN BITCH”, “You gon b missing PERMANENTLY”, “Hell called. They want the Devil back ” (sic), …, etc.

• The comments were sent to 50 “friends” of the plaintiff, including work colleagues.

B. Legality of the evidence emanating from the social media Finding :

• The arbitrator maintained the dismissal by considering the comments spread on Facebook as being abusive, intimidating, disparaging and largely disproportionate in consideration of the events.

• The comments formulated against her supervisors have caused them to be absent from work for psychological distress reasons, and necessitating medical care for one of the supervisors.

• The plaintiff was found responsible for her writings on Facebook, even if she thought her comments were private.

B. Legality of the evidence emanating from the social media Syndicat des travailleuses et travailleurs de la santé et des services sociaux de Sept-Îles et CSSS de Sept-Îles, DTE 2014T-262 Facts :

• Beneficiary attendant was 4 months pregnant. • 1 ½ years of seniority, no disciplinary file. • On March 27, 2012, she expressed her disagreement with

her temporary assignation, by writing on her Facebook page :

« Criss l’hôpital de merde Pcq son en manque de personnel il font travaillé les femmes enceint. Pcq c po mon problème si il sont dans merde pis c juste ici qu’il font sa vire la côte nord de merde grrrr. » (sic)

B. Legality of the evidence emanating from the social media Facts : • Then, on April 2, she wrote :

« Travail demain jsuis en tabar… Il fallais bien qu’elle me trouve qu’elle que chose la caliss non non sa restera pas lo; Pcq Jsuis enceint j’ai 16 sem pis hôpital m’oblige à travail pis y’a juste à sept île qu’il fond sa c une gang de caliss » (sic)

• On April 12, she was dismissed.


Facts :

• The employee argued that she was enraged, that she was affected by her hormones fluctuation and that she was only expressing her anger of being called to work because she was going through a difficult pregnancy.

Finding : • The employee was right to express her disagreement but she chose to « attack » the hospital and her managers before her numerous Facebook friends. • Her comments were found to be shocking, vulgar, injurious and to undermine of the hospital’s reputation.

CSSS de Sept-Îles B. Legality of the evidence emanating from the social media

Finding : • There was a lack of medical evidence showing that her pregnancy was as difficult as alleged, that it lead her to write these comments on her Facebook page.

• The consequence of the employee’s conduct was hard to measure, but it was certain that any candidate reading these words would not be inclined to apply to the CSSS of Sept-Îles.


Finding : • The employee did not express any regret and did not make any excuse.

• The dismissal is therefore maintained.


C. Management of the Internet use in the workplace

• Principle:

ü By virtue of his control and direction powers, the employer can supervise the use of the internet by his employees in the workplace, in order to ensure the good functioning of the company.

• Section 2085 C.c.Q. specifies :

“A contract of employment is a contract by which a person, the employee, undertakes for a limited period to do work for remuneration, according to the instructions and under the direction or control of another person, the employer.”

C. Management of the Internet use in the workplace • Limits:

ü  Right to privacy of the employee; ü  Right to fair and reasonable working conditions; • As told previously, the expectation of privacy is much

less apparent in the workplace as opposed to the expectation of privacy at home.

• Therefore, to maximize its ability to monitor the use of Internet in the workplace, an employer should clearly and as much as possible limit this – already low – expectation of privacy.


• Factors that reduce the expectation of privacy of an employee in the workplace:

ü Adoption and knowledge of the workplace policy regarding Internet use;

ü Consent of the employee to the surveillance of the use of Internet, if necessary;

ü The fact that the goods belong to the employer (computers, for example);

ü All the communications made in the workplace are presumed to be made for professional purposes.

C. Management of the Internet use in the workplace • Best practice : adopting a valid IT and social media policy

that elaborate the rights and obligations of employees in the workplace.

• The implementation of such a policy will not, however, eliminate all expectation of privacy for the employees.

• A properly drafted policy will nevertheless serve different purposes :

1.  Manage any risks related to the use of social media; 2.  Facilitate demonstration that an employer has satisfied its

burden of proof in the event of a disciplinary sanction for inappropriate use of social media in the workplace.

C. Management of the Internet use in the workplace • Limits of the employer’s monitoring :

ü  An employer cannot monitor the use of the Internet at random and in a punctual manner, as it would otherwise constitute a “fishing expedition” with the objective of spying on employees.

ü  An employer cannot automatically or systematically

monitor the use of the Internet by its employees.

ü  An employer must have serious doubts in order to start monitoring his employees with respect to their use of the Internet : a mere allegation of wrongdoing or a simple doubt will not suffice to justify this kind of initiative.

C. Management of the Internet use in the workplace • Right to sanction for inappropriate Internet use: ü The employee has a duty of loyalty toward his employer

(art. 2088 C.c.Q.).

ü An employee will be deemed to have violated this duty if he favors his personal interests over the employer’s interests or if he acts in a manner that lacks honesty and integrity towards his employer.

ü The employer has the power to sanction an employee when

the latter does not comply with the established norms, by imposing disciplinary measures, especially when dealing with loyalty issues.

C. Management of the Internet use in the workplace Syndicat des employé-e-s- de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 v. Hydro-Québec, 2013 CanLII 50447 (QC SAT) Facts: the plaintiff was dismissed for abusive use of the internet during the working hours.

Finding: the dismissal is confirmed. On average, the plaintiff spent more than an hour per day on the internet although she knew very well the code of conduct of her employer, which prohibited any personal use of the internet during the working hours.


Montour ltée et Syndicat des employées et employés de la cie Montour (CSN), D.T.E. 2007T-195 (T.A.) Facts : • A supplier of the employer randomly finds a text published

on an Internet chat site in which an employee posted unflattering comments about his employer and his job.

• In one of the posts, the employee stated that he only works four hours per day and that he plays cards the rest of the time.

C. Management of the Internet use in the workplace Facts : • After this discovery, the employer dismissed the

employee on the grounds that he violated his duty of loyalty and that his conduct tarnished the reputation of the organization.

• The employee replied by stating that he was merely “boasting”.

C. Management of the Internet use in the workplace Finding : • The grievance arbitrator upheld the dismissal.

• The arbitrator considered that the employee acted inappropriately and his posting on the Internet was equivalent to stealing the employer’s time. • The arbitrator affirmed that anybody could access the

website and that the employee was disloyal towards his employer, thereby irreparably breaching the relationship of trust.

C. Management of the Internet use in the workplace Arpin c. Bernard Gilles Grenier, J.E. 2004-1172 (C.Q.) Facts: • The employee was the assistant to the President and the

company marketing representative.

• One month before his termination, the employee posted an offensive and defamatory text in an Internet chat room, signing the text with his company email and clearly identifying the name of the employer.

• Two years later, the employer was informed of the existence of the text by a third party.

• As a result, the employer claimed damages in the amount of $6,985.00 from the former employee.

C. Management of the Internet use in the workplace Finding: • The employee was condemned to pay damages in the

amount $3,000.00.

• As a senior employee and member of upper management, the employee ought to have known that the use of his employers email account for these purposes could tarnish the employer’s reputation.

• The text contained offensive and defamatory statements.

• The employee’s actions constituted a breach of the duty of loyalty towards his employer. It also constituted an infringement of privacy.

• The duty of loyalty and the respect of privacy supersede, in the Court’s view, the employee’s freedom of expression

D. Management of passwords and ownership of social media accounts PhoneDog v. Noah Kravitz, 2011 WL 5415612

Facts :

• While working at PhoneDog, Noah Kravitz used the Twitter account « @PhoneDog_Noah » in order to promote the activities of his employer. • The employee stopped working at PhoneDog in october

2010.

• Thereafter, he refused to stop using the account, but changed its name to « @noahkravitz » and kept the same “followers”.

D. Management of passwords and ownership of social media accounts

Finding :

•  At a preliminary stage, the District Court held that Kravitz’s refusal to relinquish the passwords and account to his former employer could constitute a misappropriation of trace secrets.

•  However, in order not to establish a precedent, the parties settled the matter.

D. Management of passwords and ownership of social media accounts Eagle v. Morgan et al., no 11-4303, 2013 US Dist LEXIS 34220

Facts:

• Linda Eagle, Chief Direction and one of the co-founders of Edcomm, created a LinkedIn account using the email address of Edcomm.

• She gave her passwords to a few employees of Edcomm in order for them to update her account, if necessary.

•  Immediately upon termination of her employment, the employees accessed her account and changed her password.

• The name and picture of the new Chief Direction, Sandi Morgan, were substituted to hers on the LinkedIn profile. However, some information concerning Linda Eagle were still displayed on the profile.

D. Management of passwords and ownership of social media accounts Finding:

• The court found that although Edcomm encouraged the creation of Linkedin accounts by its employees, it had no clear ownership policy in place for these accounts.

• Therefore, there was no evidence of Edcomm’s ownership of Eagle’s account, even though Edcomm’s email address was linked to it.

• Moreover, over the years, the patronym « Eagle », associated with the Linkedin account of Linda Eagle, acquired a certain commercial value.

D. Management of passwords and ownership of social media accounts Finding:

• The Court found that Eagle had proven three claims against

Edcomm, namely unauthorized use of name, invasion of privacy and misappropriation of identity.

• Despite this finding, Eagle failed to prove any damages with reasonable certainty and was not entitled any monetary damages.

• Moreover, the Court found that conversion claim did not apply, since a Linkedin account is an intangible property.

E. Company policies with respect to social media Best practices and advice for employers : • Describe with precision to whom the policy applies;

• Describe the circumstances in which the policy applies;

•  Insert a description of the websites aimed at by the policy;

• Clearly define the company’s values with respect to that policy;

• Specify that the employee must ask for the permission to use the name and/or logo of the company on social media;

• Make the employees aware of their duty of loyalty towards their employer;

E. Company policies with respect to social media

• Make the employees aware of their duty of confidentiality;

• Make the employees aware of the consequences of psychological harassment via social media;

•  Identify the disciplinary measures applicable in case of non-compliance with the policy;

• Make sure the policy is clear, intelligible and well understood by the employees;

• Apply the policy in a fair and non-discriminatory manner;

• Make sure the policy has been communicated to the employees and remains available for future reference.

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