Law Times

Law Times • November 11, 2013 FOCUS Page 11 Employers urged to get proactive on social media policies BY MICHAEL McKIERNAN For Law Times M ost employers are all talk and no action when it comes to social media policies, according to a Toronto employment lawyer. But Stuart Rudner, co-founder of employment boutique Rudner MacDonald LLP, hopes a string of high-profile incidents will spur more businesses to finally take action. In the last few months, three firefighters saw Twitter jokes backfire as they lost their jobs for allegedly sexist and inappropriate posts. The incident followed the case of a mechanic at a Mr. Lube in Vaughan, Ont., who sought out local drug dealers to supply him with a "spliff " on Twitter. He lost his job after police invited themselves along in a responding tweet and forwarded the message to one of his bosses. "I think a lot of people talk about the issue but I'm not sure how many have actually taken the steps they should of putting policies in place," says Rudner. According to Rudner, a wellwritten policy can help prevent a firestorm before it happens by educating employees on their responsibilities online or back up stiff discipline should the worst happen. "I tell my clients to be proactive," he says. "Have a policy and make it clear to employees what they can and can't do. If you do that, it makes it difficult for an employee to go to court down the road and say, 'I had no idea this could possibly lead to discipline or dismissal.'" Daniel Pugen, a partner in the labour and employment group at McCarthy Tétrault LLP's Toronto office, says employers are kidding themselves if they think they can ignore social media use by employees. "Practically speaking, all your employees are on Facebook, Twitter, LinkedIn or some other social media platform. You can't escape that practical point, and the fact is they're doing it at work." Rudner says social media issues divide along the lines of offduty and on-duty conduct and that any policy should address both. In the workplace, he says, productivity is a big concern for employers. "We've all seen it when you're walking through the office and people start rushing to minimize windows. They're obviously doing something they don't want you to know about," says Rudner. He says policies should lay out employers' expectations about acceptable and unacceptable uses of social media while in the workplace and emphasize the fact they'll be monitoring usage and there will be no professional lines in social media use as well as expectation of privacy for employees. the potential liability of employers. "There are lots of tools out there for monitoring In Perez-Moreno v. Kulczycki, the HRTO found what employees are doing. Some are expensive and Facebook posts by one employee describing a some are not, but the key is if you're going to have a co-worker as a "dirty Mexican" constituted workpolicy, you have to enforce it. Otherwise, it becomes place harassment under the province's Human meaningless," says Rudner. Rights Code. Although the action didn't name the While some employers may want to ban social employer, Pugen says businesses may be liable for media use at work outright, Kumail Karimjee, coharassment of staff. founder of Karimjee Greene LLP in Toronto, says "I find the respondent's statements and actions in it may not always be realistic or wise to go that far. communicating them on Facebook amount to ha"A policy shouldn't seek to overreach. For emrassment in employment contrary to the code. The ployees to buy in, it has to be reasonable. We've seen comments clearly were vexatious and related to that in the evolution of computer and Internet use an incident that occurred in the workplace," wrote policies. The first wave typically said that you can't HRTO vice chairwoman Dawn Kershaw in the use work-owned computers for anything not work June 18 decision. related. Things have evolved a bit and employers Rudner says employers have always had the law have typically recognized an occasional-use policy on their side when it comes to dismissal for offis a good way to go. I think the same is true of social 'It should be made clear that the employer media policies and it will make them more likely to owns any social media accounts that are duty conduct where it affects the business. But he be honoured." used by employees on behalf of the com- says the public nature of social media has made it far easier for employees to damage the reputation Pugen agrees that a complete ban may not make pany,' says Daniel Pugen. of their employer by association than in the past. sense for all employers, especially since many have "It could be as blatant as going online and saying, 'My employers embraced corporate Twitter accounts and Facebook pages. "That's an area that's often neglected. It should be made clear that cheat clients' or something as simple as posting an offensive comment the employer owns any social media accounts that are used by em- online where it's obvious they work for a certain company," he says. Karimjee says policies should address off-duty conduct but notes ployees on behalf of the company," he says. When it comes to regulating off-duty conduct, things can get a employers should be careful about going too far. "I think there have to be limits on the extent to which an employer little bit complicated, according to Pugen. He says a recent Ontario LT Human Rights Tribunal highlights the blurring of personal and can seek to control private behaviour of employees," he says. inDispensAble, AuthoRitAtive bullen & leAke & JAcob nEw EdITIOn BuLLen & Leake & JaCOB's Canadian PreCedents Of PLeadings, seCOnd editiOn ExTEnsIvEly updaTEd and ExpandEd wITh sEvEn nEw praCTICE arEas Now in a two-volume set, this new edition of Bullen & Leake & Jacob's Canadian Precedents of Pleadings brings you extensive updates in the law and precedents and features the addition of seven new practice areas and eleven new topical chapters. Learn from Canada's top litigators on how to draft accurate, clear and compelling pleadings. 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