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Social media and the employment relationship

Law Society of Upper Canada’s panel discussion raises numerous points of interest for employers to be wary of when it comes to social media

By Stuart Rudner

Last week, I was honoured to be on a panel at the Law Society of Upper Canada’s special lectures, which this year focused on employment law and the new workplace in the social media age. I spoke on a panel with fellow blogger Lisa Stam, of Baker & McKenzie, and with Ari Blicker of Aird and Berlis.

Over the course of two days, there were a significant number of impressive and informative speakers touching upon a number of issues relating to social media and the employment relationship. Below I have set out just a few of the interesting points that were made or issues that were raised:

Police investigations and criminal prosecutions

If an employee is accused of misconduct that could involve illegal activity, the employee may be concerned about participating in an employer-led investigation, as voluntary statements can be used against the employee in a police investigation or criminal prosecution.

Jonathan Shime, a criminal lawyer, suggested it may be possible to address this concern by establishing the employee was compelled to provide the information in the course of the investigation.

Obligation on employers to report criminal activity

Contrary to popular belief, an employer that discovers that one of its employees has been involved in criminal activity is not obligated to report such activity, with limited exceptions.

Ownership of social media accounts

According to Barry Sookman, a leading expert in the area of intellectual property and IT law, there is currently a gap in the law regarding the ownership of social media accounts.

In a situation where, for example, an employee creates a Twitter account and tweets for the benefit of the company, developing a following over time, and then leaves to join a competitor, it is unclear as to whether the employee or the former employer own the account and the goodwill it might hold. Rather than leaving the outcome to chance, employers are advised to use contracts and policies in order to establish ownership of such “property.”

Employment contracts and social media

As Jennifer Fantini and others discussed, traditional contracts of employment should be adapted in order to address social media issues.

Among other things, they should address (as appropriate) pre-hiring social media checks, ownership of social media accounts, use of social media at work and off-duty, monitoring use of technology, confidentiality, use of corporate property and any other issues that might arise.

Restrictive covenants

The law regarding non-solicitation and related covenants may need to be updated or at least reconsidered with respect to its application to social media. For example, if an employee is connected to customers of their employer on LinkedIn, leaves to work for a competitor, and then updates their profile to indicate who their new employer is, is that solicitation?

What about if they send a general announcement to hundreds of connections, including a small number that were customers of their former employer? What if they send a targeted announcement only to customers of their former employer? It is unclear where the lines will be drawn.

Contracts

Contracts that define examples of just cause for dismissal should address technological and social media-related misconduct.

Hiring

With respect to hiring, a number of experts, including Mary Beth Currie, recommend advising applicants and/or obtaining consent before conducting social media background checks.

Almost all of those who commented on the issue seem to be of the view that reviewing publicly available information on social media websites in the course of the hiring process is acceptable (subject to the caveat in the bullet above), but that requiring login information would be offside.

Customer lists and databases

While customer lists and databases may be considered trade secrets and therefore protectable at law, they may lose that status if they are easily recreated using online information. As such, companies should think twice before publishing customer or client lists online.

As should be evident from numerous posts on this blog and others, social media introduces a number of complicated issues into the area of HR law. As always, employers should proceed cautiously and use the tools available to them, including contracts and policies, in order to protect themselves as much as possible.

It is always wise to set out the “rules of the game” in a contract or policy, rather than have a court impose them on you.

Stuart Rudner is a partner with Miller Thomson LLP in Ontario, specializing in employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (905) 415-6767 or srudner@millerthomson.com. You can also follow him on Twitter @CanadianHRLaw, join his Canadian Employment Law Group on LinkedIn, and connect with him on Google+.

Stuart Rudner

Stuart Rudner is a founding partner of Rudner MacDonald LLP in Toronto. Follow him on Twitter @CanadianHRLaw. He can be reached at srudner@rudnermacdonald.com.
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