This presentation looks at the different forms of Social Media, including Facebook, Blogging, Twitter, Blippy, Four Square and others. It reviews the caselaw dealing with social media in the course of employment, the dismissal of employees for "off duty" conduct, the expectation of privacy, social media policies and monitoring, developing a policy for your workplace and collective bargaining.

1. Twitter On – The Use of Social Media by
Bargaining Unit and Non‐Union Employees
in the Workplace
7th Annual Labour Relations Conference
Carman J. Overholt, Q.C.
Direct line: 604.622.5165
Email: Carman.Overholt@fmc‐law.com
LinkedIn: http://www.linkedin.com/in/carmanoverholt
January 24‐25, 2012
Four Seasons Hotel
Vancouver, B.C.
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6. 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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7. 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 limitless
international defamation.”
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8. 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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9. 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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10. 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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11. Facebook
• 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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12. Facebook
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13. Why does Facebook matter?
Source: http://buzzcanuck.typepad.com/agentwildfire/2007/04/facebook_toront.html 13

14. 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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15. 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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16. 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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17. Searching Blogs
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18. Searching Blogs
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19. Twitter
• Instant updates
• Real time information network
• Information sharing
• Gather real‐time market intelligence and feedback
• Business can engage an audience
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20. 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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21. 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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22. 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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23. 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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24. 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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25. 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 25

26. 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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27. 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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28. 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 clothed
midsection of the complainant’s body
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29. 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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30. 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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31. 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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32. 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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33. 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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34. Lougheed Imports Ltd. [BCLRBD No. 190]
• Union alleged dismissal of employees breached the BC Labour
Relations Code
• Employees had made a number of posts on their Facebook
profiles 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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35. British Columbia v. BC Government and
Service Employees Union (Grierson
Grievance) [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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36. 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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37. 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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38. 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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39. 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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40. 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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41. 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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42. 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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43. 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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44. 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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45. 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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46. Groves v. Cargojet Holdings Ltd. [2011]
C.L.A.D No. 257
• Employee claimed unjust dismissal over comment on
Facebook
• “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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47. 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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48. 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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49. Whitham v. Club 24 Ltd. (UK) (2011)
• Comments were minor and did not warrant dismissal
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50. 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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51. 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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52. 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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53. 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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54. 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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55. 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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56. 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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57. 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 Facebook
passwords
• 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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58. 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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59. 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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60. 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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61. 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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62. 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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65. Questions?
Thank you for attending the 7th Annual
Labour Relations Conference
Carman J. Overholt, Q.C.
Tel.: (604) 622-5165
Email: Carman.Overholt@fmc-law.com
LinkedIn:http://www.linkedin.com/in/carmanoverholt
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66. The preceding presentation contains examples of the kinds of
issues companies dealing with social media in the workplace could
face. If you are faced with one of these issues, please retain
professional assistance as each situation is unique.