The Danger of Social Media in the Workplace

| September 16th, 2016 | No Comments »

social mediaSocial media has become the driving force of most workplaces.  Just a short time ago, it was barely on a company’s radar as a means of driving production or sales; it was commonly viewed as a nuisance to be avoided in the workplace, dismissed as a means for depraved millennials to get the company into trouble.

Today, social media is seen in a much different, far more positive light by most forward-thinking organizations.  Now companies use LinkedIn to track new recruits; salespeople pump their Facebook contacts to find leads; Twitter has become an effective (and free!) advertising tool.  Even formerly fringy operations like Instagram and Snapchat have found in a legitimate home in offices around Canada.

Despite the power of social media to disseminate and promote, it can still expose companies to potential workplace transgressions – often in the blink of an eye.  Employees have an easy means of speaking without authority on behalf of their employer, posting unfortunate work-related photos of themselves, using social media to of publicly vent about their boss, and so on.

For these reasons, it’s become imperative for workplaces to have a well-drafted social media policy emphasizing the Do’s and Don’ts for employees and contractors who work with their company.  By doing so, companies can ensure employees understand how to communicate effectively using social media – both within and outside the workplace – and what the consequences could be if they don’t use it properly.


Author: Daniel Chodos, Whitten & Lublin

Legal implications from 2014 workplace employment cases

| January 28th, 2015 | No Comments »

Big employment cases from 2014 drew a good amount of attention to workplace law. Specifically, it demonstrated the legal implications to employees and employers.  To date, we continue to see the consequences of these fallouts. Whether through poor judgment, ignorance of the law or quite simply wrongful conduct, Canadians and Americans have been at the forefront of workplace legal disputes. Some cases that have drawn media attention include the Jian Ghomeshi scandal regarding allegations of sexual harassment, Donald Sterling and his discriminatory comments, the two Liberal MP’s accused of harassment. The list goes on.

Toronto Employment Lawyer, Daniel Lublin discusses in his most recent Globe and Mail article five (5) key points to look out for regarding employment issues that arose in 2014, and will continue to have an impact in 2015. These include:

  1. The freedom of speech fallout;
  2. Behavior unbecoming;
  3. Probing Allegations;
  4. Boomers Beware; and
  5. Honesty is the best Policy.

To understand these key points in great detail, read Daniel Lublin’s Globe and Mail column and full article Fallout still spreading from big workplace cases


Employees’ beware- Off-duty conduct can impact your work

| November 4th, 2014 | 1 Comment »

An employee’s conduct at work and out of work can eventually lead to potential discipline or termination by their employer.  The role of the media is now, more than ever impacting the employment environment and working relationship. We are living in an era where the pictures that you post online or the life you led years ago, can come back to haunt you.  The media scrutiny surrounding Jian Gomeshi, Donald Sterling and Ray Rice are all fine examples.  Their personal lives have affected their working relationship and eventually led to termination or discipline.

In his most recent article, Daniel Lublin, Toronto Employment lawyer explains how no one is exempt from termination based on their out of work conduct. Indeed, only a small percentage of people with positions of trust can be terminated or disciplined without severance.  The others must be paid severance. The allegations made against well-known people and those of trust make headlines simply because their actions affect their employers’ brand. Those who do not affect their employers’ brand but whose behavior out of work is shameful can be disciplined or terminated with cause and is usually upheld in Court.

To read more on this subject and for a more comprehensive overview, read Daniel Lublin’s full article Lines blurred between employees’ work and private life and his column in the Globe and Mail.

Toronto Court to Decide if Twitter Harassment Warrants Jail Time

| January 10th, 2014 | No Comments »

Tweets Cause Woman to Fear for Her Safety

A man was in court in Toronto yesterday who stands accused of criminal harassment via Twitter. A woman alleges that the man sent her sexual messages via Twitter and continued to do so after she asked him to stop. She says his Tweets caused her to fear for her safety. Therefore it is time for the Toronto court to decide if Twitter harassment warrants jail time.

The Criminal Code of Canada

The Criminal Code of Canada defines criminal harassment as conduct, which causes another person fear for their safety. The fear must be reasonable in all the circumstances.

In light of this, the defense in this case may try to argue that the woman had no reasonable basis to fear for her safety in the circumstances and that she essentially over-reacted. While the woman’s position is a novel one, it is increasingly important – just because the harassment takes place online it shouldn’t provide an aggressor with impunity with respect to comments that cause fear in others. It is for the Toronto court to decide if Twitter harassment warrants jail time.

While the standard for criminal harassment is different that the definition of harassment pursuant to the Ontario Human Rights Code, this is an important case with ramifications in employment and human rights law as it will set a precedent for how the courts will deal with harassment via Twitter.

Privacy in the Workplace; Employer Collection of GPS Information from Cell Phones Issued to Employees

| December 3rd, 2013 | No Comments »

Concerns About Privacy in the Workplace

In this new digital age, concerns about privacy in the workplace are becoming increasingly important. Since privacy legislations in several Canadian jurisdictions are similar, although not an Ontario decision, a decision from the Office of the Information & Privacy Commissioner for British Columbia may prove instructive.

Collection and Use of Global Positioning System Information

The issue in Kone Inc. (Order P13-01) (2013 BCIPC 23 (CanLII)) involved the collection and use of Global Positioning System (“GPS”) information from employer-issued cellular phones to its elevator service maintenance employees. The employees in question generally worked alone and were dispersed across wide geographic areas.

The employees complained that the information collected was in contravention of BC’s Personal Information Protection Act. Mechanics were to transmit to the phones information about when they were “on duty” and “off duty,” as well as when they arrived or left client sites. The GPS information was only sent to the employer, Kone Inc., when the mechanic was “on duty”. The phone would be set “on duty” during the workday, save the times when the employee was on break. The transmitted information would be downloaded to Kone Inc’s computer system.

Kone stated that the information collected was for workplace management purposes, and did not violate privacy laws.  The employees disagreed, stating that the information was “personal information” and argued that the employer should disable the system and use a reporting system similar to that used prior to the introduction of phones.

The IPC reviewed the complaint and found that the manner, amount and type of information collected was reasonable use of management rights.  To address employee concerns about privacy, although finding the employer had complied with and acted in a manner consistent with the Personal Information Protection Act, the Commissioner recommended that KONE “create a specific policy for the phones that comprehensively set out the purposes for which the GPS information may be collected, used or disclosed . . . which could provide existing (and new) employees with a single, clear and continuing source of notice of KONE’s purposes for the technology.”

Privacy in the Workplace and Employer Decisions

This decision demonstrates that employer decisions on “technological monitoring” are given reasonable interpretations so as to not interfere with business operations. No doubt the balancing test between employee privacy rights and employer rights to manage the workforce will continue to evolve as technology develops.

All situations are different, and the above is not to be taken in whole or in part as legal advice. If you have questions about your particular situation, feel free to contact the lawyers at Whitten and Lublin.

Employee Fired After Seeking Marijuana on Twitter While at Work

| October 16th, 2013 | No Comments »

Employee Posting Inappropriate Requests on Twitter

Sunith Baheerathan was fired from a Toronto area Mr. Lube after it came to his employer’s attention that he had posted to Twitter, while he was working, requesting that a dealer bring marijuana to his workplace so that he could get high in order to help him make it through his shift.

The Tweet drew the attention of many, including the local police, who sarcastically tweeted back asking, “can we come too?” Someone – presumably the police – notified his employer, which promptly terminated Mr. Baheerathan.

This case is another example of how an employee’s conduct on social media can have a serious impact their employment.

The Employee Fired After Seeking Marijuana on Twitter While at Work Reminds Us to be Mindful of Privacy Settings

As use of social media, like Twitter, Facebook, Reddit and LinkedIn, becomes increasingly common, slip-ups like this one will have a greater likelihood of being seen by one’s employer. Employees would be wise to be mindful of their privacy settings, being specifically careful of who can see their activity, and to only post sensitive content to private spaces.

A more cautious strategy would be to treat all social media like a public forum. The Internet has a long memory, and comments made in passing or intended for a private audience can easily wind up surfacing later, and causing trouble that could have been avoided.

Employees should certainly be careful about social media use while they’re on the clock. However, they would be well advised to be just as careful outside the workplace. If an employer gets wind of some conduct outside of work that is sufficiently serious, such as criminal activity or a violation of a workplace rule, the employee could face termination or other discipline. Employers would be well advised to implement a social media policy, in order to protect their reputations and business interests from inappropriate employee activity.

Employee Fired After Seeking Marijuana on Twitter While at Work Should Speak to an Employment Lawyer

It isn’t known whether or not Mr. Lube alleged that it had just cause to terminate Mr. Baheerathan. Whether or not there is just cause to terminate an employee will always depend on the facts.

In most terminations where there is no just cause and the employee was not given notice, the employee is entitled to compensation. Any employees who find themselves in trouble over social media activity should strongly consider speaking to an employment lawyer, as should any employers who want to discipline or terminate an employee in relation to inappropriate social media use.

Q&A: Can the sender of text message be liable for causing a car crash?

| October 1st, 2013 | No Comments »

Widespread Mobile Communication 

Mobile communication in the workplace is already widespread, and its use is increasing.  Many employers give their employees smartphones, and many expect prompt responsiveness from their employees when they email, call or text message them. However, a recent decision out of New Jersey should be cause for Canadian employers to re-visit their policies on cell phones and other mobile communication devices.

Sender of Text Message Liable for Car Crash

In Kubert v. Best, Shannon Calonna and her friend Kyle Best were texting each other while he was driving. Mr. Best struck a motorcycle, seriously injuring its two passengers. In addition to suing Mr. Best, the injured motorcycle passengers sued Ms. Calonna, arguing that she had a legal duty to avoid texting a person whom she knew was driving.

The motorcycle passengers lost their case against Ms. Calonna. However, the New Jersey Court of Appeal agreed with them that a duty to not text message someone who is driving does indeed exist, ruling that “the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.” In this case, there was not enough evidence to establish that this duty attached to Ms. Calonna. While cases involving accidents caused by texting and driving are common, this is the first case where a court has ruled that the sender of a message could be liable in certain circumstances.

An Employer Could be Liable for Causing an Accident

This case is of particular interest to employers because an employer-employee relationship would clearly satisfy the “special reason” requirement articulated by the Court. Thus, an employer could be liable for causing an accident if it sends text messages, emails, or other mobile communications to its employees while they are driving.

While this case is not law in Canada, concern in this country over texting and driving is increasing as the problem becomes more widespread.  This case provides a comprehensive framework and persuasive rationale that a Canadian plaintiff could easily adopt. To protect themselves, employers should make sure that their mobile communication policies unequivocally forbid their employees from using any mobile communication equipment while they are driving, and also actively enforce this policy.


Daniel Lublin’s Globe and Mail video hangout

| April 19th, 2013 | No Comments »

Daniel Lublin in the Globe & Mail\’s Google video hangout

Read Daniel Lublin on The Toronto Star’s Front Page

| April 12th, 2013 | No Comments »


Daniel Lublin was again asked for his opinion on the situation surrounding RBC and recent apology to its workers affected by the outsourcing. The Toronto Star published this story and Daniel’s interview on their front page. His quotes are summed up below:


Daniel Lublin’s Front Page Quotes

For the affected RBC employees, the story has had a happy ending, said Daniel Lublin, a Toronto employment lawyer who had been contacted by some of them to review their termination notices.

“It’s a David and Goliath story. It proves sometimes the little guy can make a difference,” Lublin said.

The employees believe it took a public shaming to get action, he added.

“They felt the bank wasn’t going to do anything about their concerns until the story went public,” Lublin said in an interview. “Now they’re being treated like celebrities.”

While RBC’s apology is unlikely to change other employers’ use of outsourcing firms, Lublin said, it may make them more careful how they treat the affected employees.


For the complete story, check out The Toronto Star.


How Far Can Your Tweets Take You?

| February 7th, 2013 | No Comments »

Information Shared and Received in a Matter of Seconds

As technology continues to improve, it is becoming a very large part of our lives. Whatever used to be shared with our friends and family is now being expressed over social media sites all over the world. Any workplace frustration or outbursts of emotion can spread in a matter of seconds and be received and shared by endless amounts of people. Even with minimal “followers” one small comment can have a huge impact, which may end up costing you your job. It shows you how far your tweets can take you in a social world.

How Far Can Your Tweets Take You: The Damage is Done

In the latest series of related blunders, a simple joke between Joe Monette, OHL referee, and his friend, resulted in a suspension for the rest of the season, including the playoffs. The cause of this result began with a controversial tweet about the women of Sault Ste. Marie, Ontario. Although an apology was made, the damage was done.

Joe was not the first person to be disciplined by his employer for his actions over social media. Over the last few years, more and more individuals have been disciplined by their employers. Following this latest case, The Windsor Star asked Daniel Lublin’s opinion. Mr. Lublin stated that a lot of people who are getting in trouble for saying things online or on social media generally know what they’ve done and don’t intend to fight it, because it just makes them look worse. As well, he said that the employers should have a written social media policy and enforce it.

Mr. Lublin’s more detailed opinion can be read in the article “Social media gaffes are easy to make, hard to defend” published in The Windsor Star.

Learn from others’ mistakes and think twice before you push that “send” button.