Page 40 - CCCA Magazine Winter 2014

{ sPotligHt oN… } socIal medIa In the Workplace By Karen Sadler as social media use continues to expand and evolve in For a start, the contract between a user and LinkedIn states that “the profle you both personal and professional circles, the law is fghting create on LinkedIn will become part of to keep up with the rapid developments. LinkedIn and except for the information that you license to us is owned by LinkedIn. However, between you and others, your ac- o provide some guidance, the CCCA co-worker where such harassment is on- count belongs to you.” So the user owns and Lenczner Slaght delivered the going, egregious, and the employer takes the LinkedIn profle, not the employer. But twebinar, Practical Tools to Reduce no action in the face of it.” what about a user’s connections? Your Company’s Risk with Social Media, in As Shah and other recent case law Jaan Lilles, an associate at Lenczner October. During the webinar, the experts indicate, harassing statements made by Slaght, admits that at this point, no one tackled four emerging social media issues employees online may be grounds for knows who owns a user’s LinkedIn con- that in-house counsel and employers need discipline, or even termination, when nections, and recent case law varies de- to keep top of mind. Below, you’ll fnd the those statements target other employees pending on the specifcs. For employers, key takeaways. or the employer. To counter the potential the most prudent course of action is to risks, Sammon recommends employ- develop a written policy that not only sets 1. a new environment for workplace ers develop and implement a written out ownership rights but also provides a confict social media policy that addresses how guideline for what happens to a depart- As all manner of personal expression employees are to treat each other on- ing employee’s LinkedIn account, and moves to the online sphere, it’s no sur- line, and explains that the employer will more specifcally, to any connections the prise that workplace confict has found its investigate and remedy any complaints employee has gained through working for way there as well. Are employers required received about workplace harassment on the employer. by law to police or regulate the online ac- social media. Lilles elaborates on the potential of tivities of their employees in order to pre- future conficts, stating, “For a company vent workplace harassment? 2. a question of ownership concerned about its client lists, the failure According to Matthew Sammon, part- As the line between personal and profes- of the Canadian courts to grant protection ner at Lenczner Slaght, developments in sional social media presence blurs, ques- over connections represents a real risk to the law indicate that there is such an ob- tions about who owns social media pro- the enforceability of many commonly un- ligation, citing Shah v. Xerox Canada Ltd: fles become more diffcult to answer. For derstood rights and obligations in situa- “Since Shah, there has been a developing example, a LinkedIn profle may act as a tions involving departing employees.” line of cases regarding the employer’s marketing tool for both the individual obligation to avoid or prevent a ‘poi- and the organization he or she works 3. a new wave of non-solicitation clauses soned work environment.’” He continues, for. In situations like this, who ultimately Dena Varah, associate at Lenczner Slaght, “Courts have expanded the principles in owns that profle? And if the employee sums up the challenge of enforcing non- Shah to impose liability for constructive created the LinkedIn profle on company solicitation clauses in the age of social me- dismissal on employers who fail to pre- time, using a company email address, who dia, combining both public and private vent the harassment of an employee by a owns the profle then? forms of communication. “It’s not quite 40 CCCa Magazine | Winter 2014 Hiver