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.

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 turfed 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.

Most businesses, and many employees, regularly use computers in the workplace. Often, employers assume that since they own the computer, they own all the information on it.  When it comes to information put on a workplace computer by an employee, however, the answer may not be so simple.  There were two significant decisions on computer privacy in 2012. Although neither case was an employment law decision, they both have important implications for computers in the workplace.

The first case is R. v. Cole. Mr. Cole was a high school teacher who used a laptop issued by the school board.  When a technician for the board ran a routine check, he found that there were photographs of a naked student on Mr. Cole’s computer. The board seized the computer and searched it, then called the police and gave them the laptop, as well as discs with Mr. Cole’s internet browsing history. A long legal battle ensued over whether the police should have obtained a search warrant for the computer. In the end, the Supreme Court of Canada ruled that Mr. Cole had a reasonable expectation of privacy in the computer and the police should have obtained a search warrant.

R. v. Cole was a criminal law case, and the Supreme Court in its decision said it would “leave for another day the finer points of an employer’s right to monitor computers issued to employees”. Nonetheless, the Court’s comments provide some important insights.  The Supreme Court looked closely at the workplace policies and practices at the board, which the Court said diminished Mr. Cole’s expectation of privacy, including:

• the board’s computer policy was up-to-date, and asserted ownership of both the hardware and the information on the computer and network;
• the board reminded the employees every year of the policy; and
• the policy provided that email could be monitored and that “users should NOT  assume that files stored on network servers or hard drives of individual computers will be private.”

Even with all of these helpful factors, the Supreme Court still concluded that the police should have obtained a search warrant. But that wasn’t the school board’s problem. The Supreme Court did not have any issue with the board’s search of the computer. As the employer, the board was within its legal rights to review the contents of the computer’s drive.

In a criminal case, the available remedy for an unreasonable search is to throw out the evidence. That doesn’t normally happen in employment law cases. What is the consequence of an unreasonable search? There are a few possibilities. One possibility is a claim for constructive dismissal.  If the employer destroys the employee’s trust, the employee can quit and demand a severance package. The second possible remedy for an employee comes from another case last year.

The second important computer privacy case from 2012 was Tsige v. Jones. In this case, a bank employee, Winnie Tsige, snooped the bank records of Sandra Jones, one of the bank’s customers. Ms. Tsige was in a relationship with Ms. Jones’ former common law husband. She wanted to know if Ms. Jones’ ex-husband – now Ms. Tsige’s partner – was really paying child support to Ms. Jones like he said he was. So, she looked at Ms. Jones’ bank account 174 times over 4 years. When Ms. Jones found out, she was understandably upset. Although the bank suspended Ms. Tsige for a week, that didn’t do anything to help Ms. Jones. She sued for damages.

The Ontario Court of Appeal ultimately decided to recognize a new cause of action for cases like this, called “intrusion upon seclusion”. The Court identified three required elements for this new claim: (1) the defendant’s conduct must be intentional (which includes recklessness); (2) the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and (3) a reasonable person must regard the invasion as highly offensive, causing distress, humiliation or anguish. The Court specifically stated that no loss of money was necessary. The Court suggested that ordinarily damages would not exceed $20,000 in such cases, and it awarded Ms. Jones $10,000.

In the wake of R. v. Cole and Tsige v. Jones, employees – and recently terminated employees – have already begun to assert that employer searches of their workplace computers are an “intrusion upon seclusion”. How can an employer monitor and search the computers that it puts in the hands of its employees? The key is to manage expectations. Employers can minimize their employees’ expectation of privacy in their workplace computers by considering the follow

• Adopt a proper computer use policy, outlining what employees are allowed to do and the monitoring and searching the employer may do;
• Ensure the policy is signed by the employees and they are regularly reminded of it; and
• Implement the policy and follow through so that the reality of how employees use their computers and how the employer monitors that use matches the policy.

In the fast paced social media era, it is becoming almost impossible to decide who owns the rights to employees’ personal media sites, their contacts and their posts.  Do employers need to change the structure of their contracts to outline social media issues and how to keep up with those changes?

As those and similar questions are becoming very common among employees and employers, Daniel Lublin was asked to express his opinion on this issue in the recently published article in Law Times.  According to Mr. Lublin, a good rule of thumb for employers and workers to follow is that if the individual employee created and maintained the account for personal use, then it belongs to them.

“If it was created for the employer and the employer’s time with their resources, then the employer can claim ownership.”

However, the grey area presents itself when existing social media accounts are brought into new jobs.  This is a particularly contentious issue for employees with important public profiles where more explicit employment contracts would help clear up any confusion.

“Most haven’t gotten around to drafting contracts that say what belongs to who,” says Lublin.

The whole article can be read in the Law Times titled Focus: Who owns employees’ social media accounts?

How much privacy can be expected at work wherein everyday we are using our employer’s computers and equipment?  Employers want to make sure that they are receiving their return on investments when collecting basic information about their employees pay, attendance or benefits, and they want to be able to ensure that work is being done efficiently and safely.  Though, it is normal to give up some privacy while working for someone else, how far can employer’s watchful eye go and do employers have right to spy on workers?

Toronto Employment Lawyer, Daniel Lublin explains in his latest Globe and Mail article that generally, it is not illegal in Canada to hire a private investigator to spy on an employee who says he or she is too sick to work.  Especially if it is found that the same employee is performing physical tasks that they say they cannot perform while at work.

Most often if there is a problem with theft or security, employers will install security cameras focused on a specific location; which is not illegal.  They have the right to monitor their staff in some situations, but only if this is done in good faith and where there is a reasonable belief that an offence is being committed.  However, if there is no good reason for a camera and it is being installed without employees’ knowledge, the best first step would be to consult with an employment lawyer to discuss the employer’s new policy and see what options one might have.

Employers often monitor employees’ workplace computers, their e-mails and their Internet usage to ensure the devices are not being misused.  New fingerprinting technology is enabling employers to use more sophisticated machines and scan employees’ fingerprints in order to monitor their absence during the work day.  Due to the absence of stronger privacy laws there is no easy way to prevent the employer from installing those machines.

As part of the hiring process, job candidates’ public online profiles are often reviewed by employers and recruiters.  Provided that hiring decisions are made on the basis of legitimate job qualifications that are thereby revealed and not on any human rights grounds, there is currently nothing illegal about this practice, although some may view it immoral.

But whether or not privacy is protected by law or contract, respecting privacy in the workplace makes good business sense.

Daniel Lublin’s article and some more information about privacy law can be found in his Globe and Mail column.

Daniel Lublin was interviewed on Canada AM today regarding fallout of being fired for Amanda Todd comments on Facebook.  Daniel’s interview can be seen here.

A decade ago, employers had an issue with controlling their employees’ online use at work; today the same problem is much wider and stretches to employees’ use of social media profiles.  Every employer hopes for word of their business to go viral, whether it is through a Tweet, Facebook message or blog.  However, a bad viral message can be damaging to the company’s reputation.  How can employers prevent this and can they dictate what employees say or write?

In his recent article in the Globe and Mail, Employment Lawyer, Daniel Lublin writes about a growing concern in today’s society of how your personal social media profile and work social media profile can collide.

Who owns the online profile?  If the profile was created, populated and maintained by an individual and is for his or her personal use, then he or she is the owner.  In situations where social media profiles are created for work or that have business purpose, the profile itself and all of the contents within are owned by the employer, even if an individual or group of individuals were responsible for its popularity and content.

Online posts.  In some circumstances, employers can control what is posted on a social media profile because most employees’ public profiles are directly linked to their employer’s websites or social media profiles.  Therefore, personal opinions can easily be confused with those of their employers.  When this occurs, employers are within their rights to demand that employees remove that content, or possibly lose their job.

Accessing social media accounts.  Prospective employees have no legal obligation to provide his or her social media password and they can readily refuse.  As well, an employer can refuse to hire any candidate that does not comply with their hiring process, subject only to the prohibition against discrimination in hiring based on human rights laws.  Current employees may be subject to a policy (if an employer has one) that permits it to access and monitor e-mail sent from work or away from work but through the company’s servers.  Since employers own workplace computers and the servers they are connected to, they are allowed to monitor them with proper notice.

For more information on this growing issue of social media privacy in the workplace, you can read the full article here.

Daniel Lublin, Employment Lawyer of Whitten & Lublin will be live taking readers questions on the Globe and Mail Careers section at 12:00 p.m. EST on Friday, June 8th.  You can join the discussion by logging on here.

Is it really that way, or maybe your employer thinks differently?  An article written in the Globe and Mail by Danile Lublin, Toronto Employment Lawyer, covers situations in which employees can be disciplined for what they do when away from work, and when employers believe that off-duty behavior poses a problem to their own interests.

• Criminal behavior unrelated to the workplace but which creates negative publicity and brings company’s reputation into disrepute, can amount to cause for dismissal.
• Employees who use BlackBerrys, iPhones or tablets distributed by their companies to engage in any form of inappropriate conduct away from work may have no reasonable expectation of privacy in the contents of those devices.  Therefore, employers could, in some cases, conduct random searches of the devices and impose discipline based on what they find.
• Personal blog postings or Tweets made on employees’ own time could possibly amount to cause for dismissal if its connection to the workplace was obvious and any member of the public could view it.
• Pictures or postings on Facebook and YouTube are fair game for employers where indiscriminate content impacts, or potentially impacts, the company’s reputation, trade secrets or its competitive advantage.
• When another employee’s safety is threatened as a result of what occurs away from work, employers may even have an obligation to intervene under health and safety laws.
• In some cases, even an employee’s poor choice of friends could justify dismissal if found that the potential for harm was great enough.

What advice can employees glean from these examples?

• Conduct that occurs away from the workplace is not immune from discipline simply because it occurs away from work, but how that conduct impacts or potentially impacts an employer’s legitimate business or social interests.
• Where there is a policy in the workplace that permits employers to discipline or discharge employee for what occurs away from work, employers will be more likely to justify their decision to do so.
• Where off-duty conduct has no relationship to what happens at work, employers have no right to get involved.

For more tips on what you can do after your work, read the full article here as well as some more on similar articles on our website.