Social Networking From an Employment Law Perspective – a CCCA Spring Conference Panel

These are notes from a panel discussion by George Waggott, Partner, McMillan LLP, Toronto, Nina Barakzai, Sky Media, UK, Lyndsey Wasser, Partner, McMillan LLP, Toronto, and Lewis Gottheil, Counsel, CAW Canada, Toronto, on April 16, 2013 at the Canadian Corporate Counsel Association National Spring Conference 2013 in Toronto.

Note: these are my selected notes from this session; any inaccuracies or omissions are my own and not the speakers’. This session included a review of case law which was largely not included here.

The Social Network: What Should Employers Do?

Panelists:

George Waggott, Partner, McMillan
Nina Barakzai, Group Head of Data Protection and Privacy, Sky Media
Lyndsey Wasser, Partner, McMillan
Lewis Gottheil, Counsel, CAW Canada

Agenda:

• Overview of social media use by employers
• Discipline of employees
• Social media recruitment & background checks
• Scope of social media policies
• Making it work!

Papers available from the CCCA Spring Conference workshops page.

Nina Barakzai:

“Shape your identity, or it will shape you” – Think about this in a work context: if you are using social media all the time, are you engaging with your customers? You can help them with a transaction process.

Social media is all individual transactions. Some people in certain demographics are more comfortable with this than others. If your customers are “social media pros”, what happens if your staff are “social media virgins”? What are the disconnects?

Sky has feeds in 50 languages in 30 different companies. Challenging enough to coordinate translation for paper-based communication. In social media, staff stepped forward to translate into local “street” languages.

Companies often have policies, but staff don’t think about them until they are challenged.

There has to be a need to use social media. When she was with Dell, around 2009 they started tracking discussions about Dell in social media.

All the information you are passing through social media – you will get information back as an employer, can feed that back into your selling process.

She views social media as an “enormous opportunity” but there are some threats.

Lewis Gottheil:

Thinking about what is posting on social media, what if someone posted this same thing on the bulletin board at work?

On duty conduct versus off duty conduct:

• Canada Post 116 v. 2 LAC – employee was drinking at the time, posted reference to a mental illness – looked at as an “off duty” kind of case
• Also recommends the Bell Technical case.

Factors to look at:

• Frequency of communication
• How wide-spread?
• What is the nature of the communication?
• How insubordinate, how damaging?
• Do the communications have imbedded threats of violence or harassment?
• Was an individual named or targeted, or victimization anonymous?
• Disability such as alcholism proven with medical evidence
• Seniority of employee
• Prior record
• Discharge can be paid out, or compensation can be paid out in lieu of compensation

Reasonable expectation of privacy:

• in general arbitrators will not sustain that employees have a reasonable expectation of privacy

Employers have to be careful how they monitor social media:

• surrepticious monitoring is problematic – if you come across mention of mental illness or family problems and act on it, could be seen as human rights issue
• should notify staff you are monitoring

Lyndsey Wasser:

Recruitment:

• 77% of Canadians have social media accounts. There are about 4 million LinkedIn Canadian users. 40% are open to discussing new positions; 20%+ are openly looking for work.
• 18 million Canadians are on Facebook. We spend an average of 20 min a day on Facebook.
• Some employers create employee and alumni network groups, helps to look for other potential employees
• 92% of companies that are hiring using social media; they rate candidates in social media higher than those found on job boards (only personally recommended candidates rate higher).
• Need to maintain high level of control over who are representing the company in recruitment. Message can get distorted, easy to make false impressions over the company and opportunities available.

Background checks:

Social media checks can pull up a lot of information for you, such as:

• how well a candidate communicates
•  inappropriate postings
• comments about current/former employers
• whether a good fit with the culture
• whether there are any misrepresentations about qualifications
• whether the candidate is a well-rounded person

In Canada, the number of employers running these checks is declining; some prohibit social media background checks altogether. This is due to the complicated legal framework around collection of personal information.

Some provinces, privacy legislation requires that you obtain the person’s permission to collect personal information. Social media searches can pull up a lot of irrelevant information, and possibly personal information on third parties whose permission you do not have. It may also pull up information that is inaccurate, false or out of date.

Conduct a risk assessment before conducting a social media search:

• are there relevant laws?
• are there other ways to achieve your goals?
• reduce your risk in pulling up third party information
• identify risks of non-compliance
• ensure appropriate policies and procedures in place to reduce risk
• have a method for disregarding irrelevant information?
• be prepared to provide access to information if requested

He does not recommend using a third party to conduct social media searches for you:

• may pull into play more laws such as consumer information laws

Privacy and human rights issues need to be taken into account in all social media background checks.

Best to avoid social media searches for background checks unless absolutely necessary. Pointers to provide protection to employers:

•  obtain consent or at least provide advanced notice
•  conduct check only after conditional offer made; do not conduct background checks on all candidates
• ensure hiring managers and HR personal are property trained including how to conduct the checks and limit information obtained
•  use the obtained information only for consideration for employment
• employer should thoroughly document any non-discriminatory reasons for not hiring a candidate
• take measures to protect the information collected