This is the second of three posts on how information and privacy issues are shaping the future of employment law. Last week, I posted on the impending clash between information governance and personal use of corporate IT systems. This post is about internet use and the “virtualization” of workplace harms. Next week, I’ll post on labour stability, departing employees and information-related harms. Please comment.
Some days I yearn for a case about something tangible – a theft of tools, a punch thrown at a supervisor or a marijuana cigarette smoked on lunch hour. These kinds of matters seem like they are from another era. Today, individuals have taken to harming employees and employers through information and words – information and words often published on the internet. We are witnessing the virtualization of workplace harms.
This poses new challenges for those of us engaged in workplace law and management. Let me identify three.
First, we need to develop our technical knowledge. I’m not suggesting we be anything more than “tech savvy” – with a basic understanding of how computers store information and how networks work. We do, however, need to build relationships with technical experts to draw upon without hesitation. Find a couple good forensic IT specialists and nurture your relationships with them!
Second, we need to develop our substantive knowledge. Managing current employees is easy, but departed employees rarely have contractual obligations of relevance. We must be able to use the breach of confidence doctrine, the property torts, the intentional infliction of mental suffering tort, the (emerging) invasion of privacy tort and the defamation tort.
Mastering the defamation tort, in particular, is no small challenge. There are significant ambiguities that govern the assessment of whether the special notice and limitation defences that apply to “newspaper” and “broadcasts” apply. Moreover, getting questions about notice wrong is has potentially severe consequences, Pleading a defamation claim is also demanding, as explained by the Manitoba Court of Appeal:
Pleadings are of critical importance in a defamation action, and the technical rules which are featured in a defamation action must be complied with strictly. A party will be bound by his or her pleadings.
Finally, we need to develop a sensitive approach to dealing with the potential for conflict between our management clients and their employees who are targeted by departed employees, customers, patients, students and other outsiders. Employers have an indisputable duty to provide a safe and harassment free work environment, but the scope of the “workplace” and the limits of the duty are highly uncertain when employees are targeted by “trolls” or other internet miscreants. Moreover, the defamation action is arguably the most personal of all, and for all employees but those who are “the face of the business,” harm to an employer’s reputation will not likely flow from harm to its employees’ reputations. This, along with the personal and financial cost of engaging, means employers must tread lightly when employees become the target of words.