Toronto court to decide if Twitter harassment warrants jail time

| January 10th, 2014 | No Comments »

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.

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 defence 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. If found guilty, the man in question could face 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 »

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.

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”

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 & Lublin.

Employee fired after seeking marijuana on Twitter while at work

| October 16th, 2013 | No Comments »

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.

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.

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.

By Nathan Rayan, guest author

Can the sender of text message be liable for causing a car crash?

| October 1st, 2013 | No Comments »

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.

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.

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.

 

By Nathan Rayan, guest author

Daniel Lublin’s Globe and Mail video hangout

| April 19th, 2013 | No Comments »

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

Daniel Lublin’s interview on the front page of The Toronto Star

| 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:

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.

How far can your tweets take you?

| February 7th, 2013 | No Comments »

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.

 

Is A Workplace Computer Private?

| January 29th, 2013 | No Comments »

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.

Is your social media account really yours?

| November 13th, 2012 | No Comments »

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?

Is your boss spying on you at and off work?

| November 12th, 2012 | No Comments »

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.