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CCCA_V7No1_Dept-EmploymentLaw-FIN_CCCA_V6No4 2/12/13 2:55 PM Page 8 Employment Law Social media policies at work How far can employers go? In Canada, not as far as you think. By Landon P. Young or almost as long as there has been Fsocial media, there have been work- place social media policies, especially among U.S. employers. Some of their policies intrude into employees’ person- al lives and probably would be consid- ered contrary to Canadian values by many employers and employees on our side of the border. But are they contrary media.There is no legislation that specifi- information. This is a logical extension of to Canadian law? The answer is that cally addresses the issue. the duty on employees not to disclose such there is no clear answer. Employers can find some guidance from information to third parties that has long The question of what the legal limits are cases decided by the courts and labour been recognized by the common law. in Canada is becoming increasingly impor- arbitration tribunals, but most litigation Where the law becomes more blurry is tant as Canadian employers adopt policies over social media in the workplace has in regard to more invasive employer poli- similar to those of theirAmerican counter- mainly considered whether just cause cies or practices.These may include requir- parts to address the risks associated with existed for discipline or termination of ing employees or job applicants to provide employee use and abuse of social media. employees for threatening or bullying Facebook passwords,prohibiting employers In many respects, the United States comments posted about co-workers. from posting any information regarding the provides clearer and tighter legal restric- These cases have recognized that employer on social medial sites, even if it is tions with respect to intrusive social employees can be disciplined or, in some not confidential information, or restricting media policies. instances,justly terminated for improper use who employees may“friend”on Facebook. The U.S. National Labor Relations of social media that affects the workplace Even in Canadian jurisdictions with Board (NLRB) is charged with protecting even if employees have made those postings privacy legislation, namely British workers’ rights to organize themselves — or comments on their own time outside of Columbia,Alberta, Saskatchewan, Quebec, not necessarily with a union — to improve work.However,for the employer to be able Newfoundland and Labrador and the fed- their conditions of employment. The to discipline or terminate an employee, the eral government for federally regulated NLRB has released guidelines setting out postings or comments must have a negative employers, there is little concrete guidance examples of social media policies that would impact on a real employer interest. for employers. run afoul of employee legal protections.For Social media policies prohibiting the post- The Office of the Privacy Commis- example, in a recent decision involving ing of harassing or abusive comments about sioner of Canada’s Privacy and Social Costco,the NLRB ruled that certain provi- co-workers can certainly help employers Networking in the Workplace fact sheet sions of the retail giant’s social media policy build a case for discipline or termination of states, “Employers should view tracking were illegal because they restricted the abil- an employee. In fact, it could be argued that existing employees through personal or ity of employees to share information employers have a legal duty to discipline or work-based [social networking sites] as a regarding their working conditions. terminate employees who engage in such collection of personal information that may activity as part of the duty to provide a safe be subject to applicable privacy legislation A limited legal framework and harassment-free workplace. in their jurisdiction.” There is a very limited legal framework in Similarly,employers can have policies that The British Columbia and Alberta ISTOCKPHOTO.COM Canada to guide employers who want to prohibit employees from disclosing the em- Privacy Commissioners have similar guide- limit or monitor employee usage of social ployer’s confidential business or proprietary lines for social media background checks 8 CCCA Canadian Corporate Counsel Association SPRING 2013