Authors: Nathan Schissel, Leanne Hosfield Harding
This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.
Social media is fundamentally changing the way we work, offering new ways to engage with customers, colleagues and the public at large. One of the most familiar forms of social media is Facebook. To indicate just how pervasive this form of social media is, consider a recent article published by Maclean’s Magazine which found that there are nearly one billion global Facebook users and, as of August 2013, 19 million Canadians log into Facebook at least once a month, with 14 million logging in at least once a day. Other forms of social media that are becoming increasingly widespread in our society are Twitter, Instagram, Youtube, LinkedIn, Pinterest, blogs, and the list goes on.
For employers, the growing prevalence of social media means exposure to a number of significant risks from both operational and legal perspectives. Potential risks for employers related to social media include:
(a) Reduction in productivity resulting from time wasted by employees sending and receiving personal e-mail, surfing the net or participating in social networking during work hours;
(b) Legal liability and/or reputational harm if an employer’s systems are used to distribute information or images that are pornographic, discriminatory, harassing, criminal or in breach of confidentiality or intellectual property rights;
(c) Liability for failing to provide employees with a safe workplace free from harassment and discrimination in accordance with the requirements of human rights legislation; and
(d) Having employees knowingly or unknowingly expose the employer’s computer systems to viruses.
Employers should adopt and enforce social media policies that inform users as to the acceptable and unacceptable uses of such systems, that the employer owns the systems and will monitor any use of its systems, that users have no expectation of privacy in their email communications and Internet usage, and that consequences will flow from the breach of such policies. A well-drafted policy can make a significant difference in an employer’s ability to monitor and ultimately discipline employees for inappropriate social media use. In fact, the absence of a clear policy may restrict or prevent the employer from imposing discipline for inappropriate social media use.
When drafting and reviewing such policies, the following questions should be asked:
(a) Does the policy clearly state that employees have no expectation of privacy in their use of the employer-provided electronic devices, and that these devices are subject to regular monitoring by the employer?
(b) Does the policy establish what constitutes appropriate business use and what usage will not be tolerated? Does it indicate what penalties will be imposed for breach of the policy and are those penalties reasonable?
(c) Are employees required to read and sign an acknowledgment that they have read, understood and agree to be bound by the policy? Is this document updated as the policy is revised? Are employees reminded of the policy periodically by email, during meetings or otherwise?
(d) Are employees warned when they are in breach of the policy? Are these discussions documented? Do disciplinary letters contain an appropriate warning regarding future misuses and are such letters retained on employees’ files?
(e) Is the policy consistently applied? If the employer does not monitor a policy, it will have difficulty enforcing it.
(f) Have all relevant circumstances been considered before imposing discipline? Considerations should include:
- the employee’s work record and length of service;
- the position held by the employee;
- the nature, extent and duration of the wrongdoing;
- whether the employee has been warned for similar behaviour in the past; and
- the discipline that has been imposed on others for similar wrongdoing.
(g) If the workplace is a unionized environment, is the policy consistent with the collective agreement?
We recommend that employers seek the advice of an experienced legal advisor in developing social media policies because of the complexities involved and the implications of producing one that turns out to not be enforceable.
 Maclean’s Magazine, available online at http://www2.macleans.ca/2013/08/13/facebook-releases-stats-about-canadian-usage-14-million-daily-users/