The document discusses social media in the workplace and how employers can manage risks, including developing social media policies that outline acceptable and unacceptable uses of social media and investigating any misuse. It also covers conducting proper harassment investigations and avoiding common hiring pitfalls such as asking discriminatory questions during interviews.

1. Dealing with Difficult HR Issues
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2. Social Media in the Workplace
Presenter: Adrian Elmslie
Partner
Employment & Labour
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3. What is Social Media?
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4. What Is Social Media?
• Social media is a means by which people can communicate and
interact with a worldwide audience via the internet.
• Social Media differs from traditional media in that it allows
participants to shift between the role of audience and author
and can be carried out without any expense or specialized
knowledge.
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5. What is Social Media?
• Common examples of Social Media sites or activities include:
– Facebook
– Twitter
– Flikr
– LinkedIn
– YouTube
– Blogs
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6. What is Social Media?
• Social media’s growth and popularity is unprecedented and is
something that businesses need to be aware of:
• http://www.youtube.com/watch?v=lFZ0z5Fm‐Ng
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7. Uses and Key Aspects of Social Media
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8. Uses of Social Media
• The uses of social media range from the trivial to the
monumental:
– Share photographs and personal updates with friends and
family
– Share personal views on pop culture or political topics with
a general audience
– Make and maintain business contacts
– Market and promote businesses and products
– Organize and coordinate a revolution
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9. Key Aspects of Social Media
• Ability to instantaneously communicate
• Audience can be intentionally or unintentionally enormous
• Virtual written record of communications
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10. Beneficial Uses of Social Media in the
Workplace
• Business promotion / direct marketing
• Recruitment
• Business Networking
• Employee communications
• Intelligence gathering
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11. Managing the Risks Associated with Social
Media in the Workplace
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12. Business Risks Associated with Social
Media
1. Unauthorized disclosure and loss of confidential information
2. Potential damage to the employer’s reputation or brand
3. Loss of productivity
4. Virtual harassment
5. Criminal conduct
6. Promotion and dissemination of employee dissatisfaction
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13. Managing the Risks – Social Networking
Policies
• Although social media is new, the methods for controlling or
regulating employee conduct with respect to these new tools
are traditional.
• Starting point managing social media use should be the
Employer’s Internet or IT Policy.
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14. Considerations for an Effective Social
Media Policy
• A company’s social media policy should be specifically
tailored to the company’s own concerns, culture, industry,
business strategy and employees.
• The policy should be designed with a mind to head off
problems before they occur and clearly communicate the
employer’s expectations regarding employee’s use of social
media both at work and on the employee’s free time.
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15. Common Elements of Effective Social
Media Policies
• An explanation as to why social media activity can be a
concern for the employer.
• A reminder to employees that they should “think before they
post”.
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16. Common Elements of Effective Social
Media Policies
• A delineation between acceptable postings and unacceptable postings,
including warnings that employees should not engage in certain types of
conduct such as:
• Disclosure of company secrets, confidential, private or internal
information
• Workplace gossip
• Posting racially or sexually offensive language or graphics
• Disparaging the employer, coworkers, vendors or customers
• Participating in conversations or postings that are inconsistent with
company objectives or ideals
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17. Common Elements of an Effective Social
Media Policy
• Realistic restrictions on the use of social media sites while at
work.
• A warning that the employer may monitor public employee
postings to ensure that employees do not act in a manner that
is prejudicial to the company’s best interest.
• A reminder to employees that violation of social media use
guidelines may result in discipline, up to and including
termination of employment for cause.
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18. Use Other Workplace Policies and
Practices to Reduce the Risks
• Incorporate reference to “virtual” harassment into your
existing harassment policy.
• Protect your confidential information.
– Make sure that such information is available only on a “need to
know basis”.
– Make sure that employees understand their obligations with
respect to the return and non‐disclosure of confidential
information.
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19. Dealing with Misuse of Social Media
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20. Dealing with Misuse of Social Media
• Make sure that policies are clearly communicated to all
employees and that employees are periodically reminded of
their responsibilities and obligations.
• Where employees fail to abide by the employer’s guidelines
and policies, normal disciplinary sanctions should be followed.
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21. Dealing with Misuse of Social Media
• The type of discipline imposed should be based on:
– the seriousness of the misconduct,
– the prejudice suffered by the employer as a result of the
employee misconduct,
– the intentions of the employee; and
– the effect the activity has had on the employment
relationship.
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22. How to Conduct a Bullet‐Proof Harassment
Investigation
Presenter: Joe Hunder
Partner
Employment & Labour
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23. Overview of Presentation
• When and why is an investigation necessary?
• What kind of investigation is required? Where can you do it
yourself? When should you hire someone else?
• How to investigate? What are the procedural requirements?
• How should you document it?
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24. When and Why Investigate?
• Courts, arbitrators and tribunals recognize that allegations of
harassment or serious misconduct have significant impact on
employees and that employees have a right to hear and
respond to allegations against them before a decision that will
have significant impact on their employment is made.
• Adjudicators impose an obligation on the employer to conduct
a fair and effective workplace investigation.
• There is potential liability if an employer either fails to conduct
a workplace investigation or botches the investigation.
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25. Investigation Terminology
• Use of proper terminology is important
• Three most important phrases
– complaint
– complainant – person making the complaint
– respondent – person against whom the complaint has been made
• Avoid “loaded” phrases
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26. On Receiving the Complaint
• Review the applicable policy and any applicable collective
agreement to ensure compliance
• Treat the complaint seriously and promptly
• Ensure you understand the complaint ‐ Solicit additional
details, if required
• Consider whether or not to proceed if the complainant cannot
or will not participate
• Defuse workplace tensions pending investigation
• Recommend EAP
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27. What Kind of Investigation?
• What are the allegations?
• Can they be addressed informally through a meeting or
mediation or is an investigation required?
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28. Who Should Investigate?
• Internal vs. External
• Consider need for
– independence
– objectivity
– neutrality
– competency
– prompt response
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29. Notify the Respondent
• Identify complaint received and how it will be investigated and
by whom
• Caution against any interference with investigation, including
conversations with potential witnesses; put in writing
• Address questions as to representation: is there entitlement
under a collective agreement or the anti‐harassment policy?
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30. Develop the Procedural Script
• Complaint filed
• Authority for investigation
• Allegations taken seriously, full cooperation expected and
required
• Outline process for collecting evidence
• Deal with recording of evidence/interviews and/or
representation issues
• Cover importance of confidentiality, respect for integrity of
process, no reprisals
• Warn as to consequences of interference and retaliation
• Address timeline and temporary measures, if any
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31. Develop the Substantive Script
• Formulate questions
• Start general and move to specific
• Ensure all material allegations are covered with sufficient
particularity
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32. Interview the Respondent and Witnesses
• Inquire with respect to all material allegations, with
particulars, but do not provide the complaint itself
• Encourage any questions or clarifications
• Document the response: witness statement signed and dated;
address concerns for corrections / changing evidence vs.
clarifications
• Inquire as to witnesses
• Repeat warnings regarding confidentiality and non‐
interference
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33. Follow up, if Required, with Complainant
• Deal with allegations and/or explanations provided by the
respondent and any witnesses
• Do NOT reach any conclusions until the investigation is
completed
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34. Draft the Report
• Two parts: evidence and conclusions
• Understand and apply appropriate standard of proof – balance
of probabilities
• Document findings on credibility and reasons for them
• Make sure conclusions are supported by the evidence
• Do not fail to reach conclusions
• Should recommendations – a third part – be included?
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35. Common Hiring Pitfalls and How to Avoid
Them
Presenter: Cristina Wendel
Partner
Employment and Labour
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36. Overview
• Interviews: What you can and cannot ask
• Pre‐Employment Testing & Checks: What tests and checks can
and should you be conducting?
• Employment Contracts: Are they necessary? What should they
contain?
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37. Interviews
• Key Concerns:
– Discrimination allegations
– Alberta Human Rights Act
• Section 7 ‐ prohibits discrimination in employment practices – i.e. hiring
• Section 8 ‐ limits nature of inquiries that can be made of prospective
employees
• Protected grounds: race, religious beliefs, colour, gender, physical
disability, mental disability, age, ancestry, place of origin, marital status,
source of income, family status or sexual orientation
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38. Interviews
• How to avoid potential discrimination claims:
– Prepare a job description
– Determine the core requirements and competencies required for the
position
– Tailor questions appropriately – do’s and don’ts
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39. Interviews
• Question Do’s
– DO ask questions to enable you to determine if the interviewee can
perform the job. For example:
• Can you meet the job requirements?
• Are you legally entitled to work in Canada?
• Are you willing to relocate?
• Are you able to work rotating shifts?
• What level of education did you achieve?
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40. Interviews
• Question Don’ts
– DON’T ask questions that would require the interviewee to disclose
information relating to the protected grounds. For example:
• Do you have any illnesses or disabilities?
• Where were you born?
• Are you married?
• Do you have /plan to have any children?
• How old are you?
• Have you missed work in the past due to illness?
• What religious holidays do you observe?
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41. Interviews
• Exceptions
– Bona fide occupational requirement
– Reasonable and justifiable contravention
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42. Interviews
• Post Interview
– If necessary, make the offer of employment conditional on:
• Reference check
• Medical examination
• Drug and alcohol test
• Criminal record check
• Credit check
• Signing employment contract
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43. Pre‐Employment Testing & Checks
• Types of background checks:
– Reference checks
– Medical and fitness tests
– Drug & alcohol tests
– Criminal record checks
– Credit checks
– Education and professional certification checks
– Immigration and terrorism checks
– Psychometric checks
– Online/Google searches
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44. Pre‐Employment Testing & Checks
• Key Concerns
– Privacy
• Consent
• Reasonable
– Human Rights
• Protected grounds
• Bona fide occupational requirements
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45. Pre‐Employment Testing & Checks
• Reference Checks
– Consistency
– “Confirmation of employment”
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46. Pre‐Employment Testing & Checks
• Medical and Fitness Tests
– Necessary to determine ability to perform key duties
– Least intrusive means possible
– Duty to accommodate
– Limit disclosure
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47. Pre‐Employment Testing & Checks
• Drug and Alcohol Tests
– Drug and alcohol dependencies recognized as disability under human
rights law
– In Alberta, pre‐employment drug and alcohol testing is allowed for
safety sensitive positions
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48. Pre‐Employment Testing & Checks
• Criminal Record Checks
– In Alberta, a criminal record is not a protected ground under human
rights law
– recent changes – new restrictions and requirements
• Informed Consent form
• Format of search results
• Fingerprint verification
– Practical concerns – timing issues
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49. Pre‐Employment Testing & Checks
• Credit Checks
– Fraud concerns
– Reasonable/necessary?
– Specific legislative requirements
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50. Pre‐Employment Testing & Checks
• Other checks
• Background checking policy
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51. Employment Contracts
• Employment contracts can be oral or written
• Why get it in writing?
– Certainty
– Clarity
– Proof
– Termination clause
– Confidentiality clause
– Restrictive covenants
• Form of written employment contract
– Offer/hiring letter
– Formal contract
– Other employment documents
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52. Employment Contracts
• Ensuring Enforceability
– Make certain the minimum standards are met or exceeded – i.e.
Employment Standards Code
– Give the employee time to review the contract and obtain advice
before signing
– Have the employee sign the contract BEFORE starting work
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53. Questions?

54. Thank you for Joining Us
Adrian Elmslie 780.423.7364 e: adrian.elmslie@fmc‐
law.com
Joe Hunder 780.423.7354 e: joe.hunder@fmc‐
law.com
Cristina Wendel 780.423.7353 e:
cristina.wendel@fmc‐law.com
Fausto Franceschi 780.423.7348 e:
fausto.franceschi@fmc‐law.com
Colleen Verville 780.423.7103 e:
colleen.verville@fmc‐law.com
Tom Wakeling 780.423.7342 e: thomas.wakeling@fmc‐
law.com

55. The preceding presentation contains examples of the kinds of
issues companies dealing with difficult HR issues could face. If
you are faced with one of these issues, please retain
professional assistance as each situation is unique.