A young employee at an automobile service station is having a sluggish day. He tweets from his workplace in search of a marijuana delivery at work, to, in his words, “help him last this open to close.” Local police not only caught wind of the tweet but they tweeted back, asking “can we come too?” No criminal activity took place, but the employee was terminated the next week.

Social media usage in the workplace can be at best a mixed blessing. When used for business purposes, it can be a highly effective marketing and promotion tool that allows for a business to promote its services to practically anyone, anywhere. Yet when employees are using them for improper purposes at work (as seen above), or when usage becomes detrimental to workplace productivity, the burdens of social media can definitely begin to outweigh the benefits. A closer examination of the laws around social media can help create strong social media policies that will keep your organization at the top of its game.

The Law

The case law surrounding social media and policy is still fairly new, but the courts have begun to examine the relationships between technology, privacy, and the workplace.

In the case of R v Cole, a high school teacher’s work computer was found to contain nude photos of a Grade 10 student at the school, along with other inappropriate images. Cole had permission to use his work computer for incidental purposes, and it was a technician who found the photos while doing maintenance. The technician turned the laptop over to the principal, who then turned it over to police where a search was conducted of the hard drive without a warrant. The key legal issue in the case became the validity of the search of Cole’s work computer. While the Court of Appeal ruled that the search was justified to maintain a safe school environment, the Supreme Court ultimately ruled the search was in violation of Cole’s rights under the Charter of Rights and Freedoms.

The Cole case was a landmark balancing of an employee’s rights to a reasonable expectation of privacy versus an employer’s duty to manage the employment relationship. The Court noted that while Cole did have use of his computer for e-mail and personal data, it was not exclusive, and was accessible by network administrators and the laptop’s owners (the school board). The Court decided that Cole’s privacy interest needs to be looked at in the “totality of the circumstances,” as while the workplace policies and accessibility by others did diminish his privacy right to the computer, “they did not eliminate it entirely.”

Courts in Ontario have also held that an employee’s right to privacy is protected, and invasion of privacy can be treated as a legal wrong. In Jones v Tsige, two bank employees who did not know each other shared one thing in common – Jones’ common-law partner was Tsige’s ex-husband. Tsige was accused of looking at Jones’ confidential financial records 174 times over the course of 4 years, allegedly to see if child support payments were being made in a financial dispute between the parties. The Court held that the law in Ontario should recognize such ‘intrusion upon seclusion,’ or, more simply, invasion of privacy. The court laid out three qualifying conditions – the conduct has to be intentional (or reckless), there has to be an invasion that occurred, and a reasonable person would view it as highly offensive. A claimant does not have to prove economic harm in these cases.

While employers can request employees provide their social media log-in information and passwords, employees are not required to do so. However, if providing this information is part of a workplace policy, employers can refuse to hire an employee who does not oblige as long as the hiring choice is not subject to any other form of discrimination. Employers must act cautiously when reviewing a potential hire’s social media profiles, public or private, to ensure that any sensitive personal information found will not influence the hiring decision based on a prohibited ground of discrimination, such as race, age, pregnancy, sexual orientation, etc. Uncovering sensitive data and then hiring with that information in mind can easily place an employer at unnecessary risk for a claim of discrimination under the Human Rights Code.

Good Policy

The key for employers to navigating the social media waters is good workplace policies. Social media can be an effective marketing tool and can help to keep both consumers and employees engaged, but it is up to the employer to determine how it should and should not be used. The following are some simple tips employers can use to ensure social media policies are following best practices:

Employees should sign off on this policy and be trained on them effectively to ensure social media and personal technologies are used in the workplace for the business’ benefit, as well as for the employee’s enjoyment. When used effectively, social media is more than just fun – it may be the best free marketing tool that business has seen in years.

Our Legal and HR teams are not just social media experts themselves. They are adept at crafting social media policies that best suit the needs of your business, and ensuring that policies already in place keep your business well-protected. Contact us today for help reviewing your policies, or to set up social media training for your organization.

Blog post by Shaun Bernstein

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