Twitter On The Use of Social Media by Bargaining Unit and Non Union Employees in the Workplace
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Transcript of Twitter On The Use of Social Media by Bargaining Unit and Non Union Employees in the Workplace
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Twitter On – The Use of Social Media by Bargaining Unit and Non‐Union Employees in the Workplace
Carman J. Overholt, Q.C. Direct line: 604.622.5165Email: Carman.Overholt@fmc‐law.comLinkedIn: http://www.linkedin.com/in/carmanoverholt
January 24‐25, 2012Four Seasons HotelVancouver, B.C.
7th Annual Labour Relations Conference
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Introduction
• The media reports daily on a wide range of subjects demonstrating the way in which social media has fundamentally changed our lives and the workplace
• The use of social media in the workplace has been already the subject of a wide range of legal disputes and claims
• The Courts have recognized how technology creates an opportunity for “limitless defamation”
• Mr. Justice Blair of the Ontario Court of Appeal in Barrick Gold Corporation v. Jorge Lopehandia and Chile Mineral Fields Canada Ltd.(2004) held:
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The Law cont…
“The Internet represents a communications revolution. It makes instantaneous global communication available cheaply to anyone with a computer and an Internet connection. It enables individuals, institutions, and companies to communicate with a potentially vast global audience. It is a medium which does not respect geographical boundaries. Concomitant with the utopian possibility of creating virtual communities, enabling aspects of identity to be explored, and heralding a new and global age of free speech and democracy, the internet is also potentially a medium of virtually limitlessinternational defamation.”
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Introduction
1. The Different forms of Social Media: Facebook, Blogging, Twitter, LinkedIn, Blippy, Four Square and others
2. A Review of the caselaw dealing with the misuse of Social Media in the course of employment
3. The dismissal of employees for “off‐duty” conduct
4. The Expectation of Privacy
5. Social Media Policies and Monitoring
6. Developing a Policy for your Workplace
7. Social Media and Collective Bargaining
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Social Media and the Workplace
• Balancing free speech and privacy with the protection of the employers interests and property
• Employment contracts that address duties, policies and standards
• Confidentiality and professional standards of behaviour
• Post employment obligations to not disparage the employer, its business and employees
• Policies to promote, limit and define the appropriate use of social media in the workplace
• Technology usage policy and practice
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Social Media in the Workplace
• Privacy policy: What is the expectation of privacy in your workplace?
• Severance agreements may reference continuing contractual obligations in the area of confidentiality and non disparagement
• Assignment and other written agreements that acknowledge the ownership of the intellectual property of the Employer
• A new subject for collective bargaining
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• Biographical profile: personal details, sometimes including place of work
• Network driven: people linked together by membership in organizations
• Content can be seen by those in the network, and potentially, anyone browsing the site if specific privacy settings are not chosen by the user
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Why does Facebook matter?
Source: http://buzzcanuck.typepad.com/agentwildfire/2007/04/facebook_toront.html
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Why does Facebook matter?
• More than 500 million active users
• Canada is 6th in Facebook usage in the World
(see: http://www.nickburcher.com/2010/09/facebook‐usage‐statistics‐by‐country.html)
• 2nd most‐trafficked website in the world (www.alexa.com)
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Why does Facebook matter?
• Fastest growing demographic: 25 years old and older
• 85 percent market share of 4‐year U.S. universities
• Average time per day on Facebook 23.7 minutes
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Blogs & Social Networking
• Blogging:
– A “blog” is short for a web log. It is an online personal journal established and frequently updated by an individual
– Typically fully searchable
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Searching Blogs
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Searching Blogs
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• Instant updates
• Real time information network
• Information sharing
• Gather real‐time market intelligence and feedback
• Business can engage an audience
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Benefits of Social Networking Sites
1. Networking
2. “Intelligence” gathering(online “town hall” meetings)
3. Marketing / fundraising
4. Information about employee candidates? (Note the Guidelines released by the Office of the Privacy Commissioner of B.C.)
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Risks of Social Networking Sites
Wasting time at work
Disclosure of confidential Information
Possible damage to an organization’s reputation
Employment disputes
Virtual harassment
Defamation Claims
Breach of Privacy legislation
Labour Relations Complaints
Protected communications under labour relations legislation
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The Nature of Legal Proceedings to Address Possible Misuse of Social Media and Employers Technology• Complaints to labour relations tribunals and grievances
• Claims for extraordinary relief to protect the business of the Employer:(1) Orders for the Return of Property(2) Injunctions restraining certain acts or behaviour(3) Anton Pillar Orders
• Human rights legislation
• The Criminal law also provides protection against harassment, threats, theft, espionage and other illegal acts
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The Nature of Legal Proceedings (continued)
• The common law provides a range of civil remedies for an Employer to protect its business and branding
• A range of preventative measures that were described earlier may assist in avoiding the need for legal action and reduce the risk involved in commencing legal proceedings in this context
• A Code of Conduct and policies that establish a high standard for use of social media are essential
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Getting “Dooced”
• www.dooce.com was Heather Armstrong’s blog
She was fired from her job for writing about her workplace on the website. Getting “dooced” means getting fired for something you have written on your website.
• Delta Airlines– Ellen Simonetti, flight attendant, posted suggestive photos of herself in
her work uniform on a company aircraft on her blog, called “Diary of a Flight Attendant”
– Once Delta found out about her blog she was immediately suspended and dismissed a month later
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Getting “Dooced”
• Microsoft• Employee posted a photo of a load of Apple G5 computers being
delivered to Microsoft
Source: http://www.michaelhanscom.com/eclecticism/2003/10/23/even‐microsoft‐wants‐g5s
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Getting “Dooced”
• Manitoba Health Services – An employee alleged that he was fired from his job for posting the
following on his blog: • Getting to surf the web for 3 hours while being paid: Priceless.• Getting to blog for 3 hours while being paid: Priceless.• Sitting around doing nothing for 3 hours while being paid: Priceless.• Installing Windows 2000 Server on a P2 300: Bloody Freaking Priceless.
– Employer stated that he was fired for divulging company secrets
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New Brunswick Workers Compensation Claim
• Former students created a false, extremely defamatory Facebook page about a teacher
• Also wrote letter to Principal, Vice Principal, Department Heads and staff falsely alleging that teacher had inappropriate relations with underage girls
• Teacher entitled to workers compensation benefits
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Estrada v. Clace Holdings (B.C.)
• Employee sent two female co‐workers invitations to become his “friends” on Facebook
• Facebook site showed serious criminal offences, including sexual assault; that he was currently working for their employer; and that he had left several previous jobs because of his criminal record
• Mr. Estrada’s facebook page contained graphic details of the sexual assault, as well as a photograph highlighting the clothedmidsection of the complainant’s body
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Estrada v. Clace Holdings (B.C.)
• Mr. Estrada was dismissed
• Mr. Estrada filed a human rights complaint alleging that he was fired because of his criminal record unrelated to his employment
• Employer denied the allegation and asserted that Mr. Estrada was fired for making co‐workers uncomfortable
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Chatham Kent (Municipality) v. CAW Canada, Local 127 (2007) (Clarke Grievance)
• Jessica Clarke, an eight year employee of a retirement home, had a blog open to the public
• Ms. Clarke made disparaging comments about her employer and expressed her dislike for residents of the home
• Ms. Clarke posted pictures of herself with residents of the retirement home without their consent
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Clarke Grievance
• Arbitrator held that – Ms. Clarke violated the confidentiality policy
– The blog comments were “insolent, disrespectful, and contemptuous of management and an attempt to undermine the reputation of management at the Home…” and therefore constituted insubordination
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Alberta Union of Provincial Employees v. Alberta [2009] A.J. No. 368
• Dismissal of employee because of unflattering comments about her supervisors and co‐workers
• Refusal to remove posting
• Majority of Arbitration Board upheld the dismissal and declined to exercise discretion and impose a lesser level of discipline under the terms of the collective agreement
• different treatment of another employee in a similar incident led to arbitration award being set aside on judicial review
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EV Logistics v. Retail Wholesale Union, Local 580 [2008] BCCAAA No. 21
• Content of employee website including a blog, photographs and a personal profile
• EV Logistics identified as the employer• Blog included racist comments and violence• Grievor, 22 years of age, apologized• Termination was not justified• Factors considered by the Arbitrator included marginal connection with the employer and the employee’s otherwise good performance record
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Lougheed Imports Ltd. [BCLRBD No. 190]
• Union alleged dismissal of employees breached the BC LabourRelations Code
• Employees had made a number of posts on their Facebookprofiles which were “offensive, insulting and disrespectful comments” about their supervisors
• Employees were known as union supporters
• Employer had never encountered similar conduct
• Conduct was damaging to the employer’s reputation
• The Board found that the statements constituted just cause for dismissal
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British Columbia v. BC Government and Service Employees Union (GriersonGrievance) [2010] BCCAAA No. 54 (“Grierson”)• Arbitrator asked to determine whether there was just cause to terminate employment of two employees for sending and receiving inappropriate emails at work
• Breach of trust and employment relationship irrevocably harmed
• Employees refused to accept responsibility for their actions
• Union argued that dismissal did not reflect progressive discipline
• Appeal to the BC Labour Board was dismissed
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Wasaya Airways LP v. Airline Pilots Association [2010] C.L.A.D. No. 271
• Off duty statements found to harm the company’s reputation
• The Facebook post contained “extremely serious, offensive and derogatory remarks”
• Result of conduct was to render the employment relationship untenable
• Remedy: ‐ 3 months notice‐ deemed suspension‐ resignation to be given ‐ record of dismissal expunged
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Alberta Distillers Ltd. v. U.F.C.W., Local 1118, [2010] A.W.L.D. 1108• Resignation of an employee due in part to comments made on Facebook page of a fellow employee, which she found derogatory
• Fellow employee whose Facebook page was used to post the comments was terminated for just cause
• Union was successful in grieving the dismissal. The Arbitrator found that the uncontradicted evidence showed that the comments made on the Facebook page were made by another employee
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Re Walder, [2010] B.C.E.S.T.D. No. 113
• Employment Standards Tribunal complaint by an employee who was on pregnancy leave that she was terminated contrary to the Employment Standards Act
• The Tribunal upheld the Determination that found that the employee was not terminated because of her pregnancy, but for cause
• Among the accepted reasons for termination, the employee made false allegations on a fellow employee’s Facebook page (accessible to others) accusing the employee of stealing her job
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Teck Coal v. U.M.W.A. Local 1656, [2010] A.W.L.D. 2853• Employee dismissed from his employment due to frequent absenteeism and for dishonesty in providing a reason for his absence. The Union grieved the dismissal and argued the absences were caused by a mental disability which the employer was required to accommodate
• Arbitrator held the employee was dismissed for just and reasonable cause
• Evidence showed that the employee’s Facebook page had an entry which read “in the City and ready to party” at a time when the employee said he was not able to come into work
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Lisa McIntosh v. Metro Aluminum Products Ltd. and Augustynowicz (2011)• Repeated text messages containing sexual propositions, sexually demeaning language and sexually provocative comments
• Ms. McIntosh informed respondent that she was uncomfortable and that he must stop sending such messages
• Mr. Augustynowicz continued to act inappropriately• Stress leave and continued inappropriate and offensive text messages• Significant and ongoing physical and emotional impact of the sexual harassment on Ms. McIntosh
• $12,500 damages for injury to dignity, feelings and self respect• $14,493.80 for lost wages and $2,900.85 as reimbursement for expenses incurred plus interest
• No legal costs
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Privacy Implications• Personal Information Protection Act, S.B.C. 2003, c.63 ‐
collection, use and disclosure of personal information of both potential and current employees
• The Office of the Information and Privacy Commissioner for British Columbia has established a four part test on employee monitoring:
1) Is the monitoring demonstrably necessary to meet a specific need?
2) Is the monitoring likely to be effective to meet that need?
3) Is the loss of privacy proportional to the benefit gained?
4) Is there a less privacy intrusive way of achieving the same end?
• New Guidelines have been released by the BC Privacy Commissioner on Background checks
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R. v. Cole, 2011 ONCA 218
• Teacher issued a laptop by his employer and permitted to use it for personal use and to take it home on weekends and vacations
• Teacher had inappropriate data about a student which was found by a technician of the employer performing a scan of the laptop
• Teacher charged by police
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R. v. Cole, 2011 ONCA 218 (contd.)
• Did the Teacher have a reasonable expectation of privacy in the use of the laptop that was owned by the school?
• The Ontario Court of Appeal said yes. Lack of a clear and unambiguous policy to monitor, search or police the use of the laptop was one of the factors leading to an expectation of privacy by the user
• The warrantless search of the laptop by the police was contrary to the Charter
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R. v. Cole, 2011 ONCA 218 (contd.)
Lessons from R. v. Cole:
• Critical to have a well‐drafted technology and social media policy to address the expectation of privacy by employees
• The fact the device is owned by the employer no longer means they have an absolute right to access the data without the consent of the user and without respecting privacy laws
• Leave has been granted for an appeal to the Supreme Court of Canada
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U.S. National Labor Relations Board Settlement (February 8 2011)• dismissal of Connecticut ambulance service employee for posting negative comments about a supervisor on her Facebook page
• overly broad rules in Employee Handbook regarding blogging, internet posting and communications between employees
• the Employer agreed to revise the Handbook rules to ensure that they did not prevent employees from discussing their wages, hours and working conditions with co‐workers and others while not at work
• dismissal of employee was addressed through a separate “PRIVATE” agreement
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Groves v. Cargojet Holdings Ltd. [2011] C.L.A.D No. 257• Employee claimed unjust dismissal over comment on
• “hated her supervisor”, and joked about committing acts of physical violence against him
• Reinstated because:1. Personal time of employee
2. Facebook unconnected to the workplace
3. Facebook access was limited
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Groves v. Cargojet Holdings Ltd. [2011] C.L.A.D No. 257• 5 fold test in Millahaven Works, and Oil, Chemical & Atomic Workers International Union (Local 9‐670)
1. The conduct of the grievor harms the Company’s reputation or product
2. The grievor’s behaviour renders the employee unable to perform his duties satisfactorily
3. The grievor’s behaviour leads to refusal, reluctance or inability of other employees to work with him
4. The grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees
5. Places difficulty in the way of the Company properly carrying out its function of efficiently managing its works and efficiently directing its work forces
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Ornge v. Ontario Public Services Union (2011)• Dismissal of employee for posting on a public message board, and downloading pornographic images on a company computer
• Breach of confidentiality by referencing the cleaning of company helicopter required 5 hours of cleaning after a serious motorcycle accident
• Arbitration found that messages were not as serious as alleged by the Employer and policy was applied inconsistently
• Posted message had been immediately removed by the Grievor
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Whitham v. Club 24 Ltd. (UK) (2011)
• Comments were minor and did not warrant dismissal
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Crisp v. Apple Retail (UK)(2011)
• Comments on Facebook were derogatory towards work and certain Apple products
• The Tribunal found that employee had sufficient knowledge of technology and sufficient training with employer, for conduct to justify dismissal
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Schulte (NLRB ‐ 2011)
• Employee alleged that he was dismissed because of discussions of employer’s overtime policy
• Employer alleged that his dismissal was due to his reference of job title as “fucktard” on his LinkedIn account
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Hispanics United (NLRB ‐ 2011)
• NLRB found that a Facebook discussion between employees was activity for the purpose of collective bargaining and entitled to protection
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Karl Krauz Motors (NLRB – 2011)
• Facebook comments were not with other employees nor were they about terms and conditions of employment
• Board found that comments were connected to conditions of employment but tone of comments were not so disparaging as to justify loss of protection
• Court found that employee was fired because of comments about accident and was not wrongfully dismissed
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The Rock Wood Fire Pizza & Spirits (NLRB ‐ 2011)• Employee dismissed for Facebook comments
• Employee claimed to be Whistleblower in reporting the misconduct of a co‐worker
• The Board found that the comments were not protected because she was not a Whistleblower and that the comments had a limited connection to the terms and conditions of her employment
• Comments were not directed to other employees so it was not a concerted activity nor were they about the terms of employment
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Martin House (NLRB ‐ 2011)
• Employee posted comments comparing the workplace to a “mental institution”
• Comments about patients were a breach of their confidentiality
• As a result, the discipline was reasonable
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Wal‐Mart (NLRB – 2011)
• Individual gripe to other employees did not constitute a protected activity
• The Board found that postings were not an attempt to initiate the group action of employees
• Discipline of employee was not unlawful
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BC NDP
• The BC Privacy Commissioner investigated the BC NDP’s use of social media and passwords to evaluate candidates
• The BC NDP asked potential candidates for their Facebookpasswords
• The commissioner found that the BC NDP breached the Personal Information Protection Act because the information was personal and possibly outdated, irrelevant or inaccurate
• The other reason for the determination was that the collection included the personal information of other individuals who had not given their consent and there were alternative ways to assess the candidates
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Is discipline warranted?
1. Seriousness of the misconduct
2. Adverse effect on employment relationship
3. Prejudicial to employer or the employee’s ability to properly carry out job functions
4. Repeated or isolated activity
5. Intention of harming employer
6. Was the statement to persons other than co‐workers?
7. Were the statements made for the purpose of organizing other employees?
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Should employers restrict the use of Social Media in the Workplace?
Employer Options:
Outright ban on access to some or all social media in the course of employment
Permit access at work and place some restrictions on use
Prohibit access at work
No restrictions
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Social Media Policy• Clear statement that employees should not engage in certain types of conduct
– Disclosure of company secrets / confidential information– Workplace gossip– Posting racially or sexually offensive language or graphics– Disparaging co‐workers, vendors and customers
• Policy should:– Encourage responsible use of Social Media– Promote use of privacy settings/controls– Outline what to do in the event of a complaint– Describe consequences including discipline and possible dismissal
where Social Media is improperly used in the workplace
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Social Media Policy (continued)
– Explain potential problems resulting from reference to the employer’s name even where access to social networks is outside of workplace
– Outline employer’s right to monitor– Describe consequences of breach of standards and policies – Provide training– Obtain employee acknowledgment and acceptance of terms of the
Policy– Provide contact person within the company to request further
information and guidance on appropriate use of social media in the course of employment
– For bargaining unit employees, the Policy will be subject to collective bargaining obligations and the requirements of labour relations legislation
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Social Media Policy (continued)
• Employer should have a policy which addresses monitoring the employee’s computer use:
– Do employees have an expectation of privacy?– Confirm whether and to what extent they can speak on behalf of the employer
– Outline the circumstances when monitoring may occur and in what circumstances an investigation will be conducted
– Provide an assurance regarding protection of privacy of personal information that is not relevant to the workplace
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Questions?
Thank you for attending the 7th Annual Labour Relations Conference
Carman J. Overholt, Q.C.Tel.: (604) 622-5165Email: [email protected]:http://www.linkedin.com/in/carmanoverholt
The preceding presentation contains examples of the kinds of issues companies dealing with social media in the workplace couldface. If you are faced with one of these issues, please retain professional assistance as each situation is unique.