Canadian Lawyer InHouse

Feb/Mar 2010

Legal news and trends for Canadian in-house counsel and c-suite executives

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By Peter Biro, partner, WeirFoulds LLP. You are corporate counsel to a Canadian company. Your human resources manager advises that some of the company's employees have posted various "objectionable" statements on their respective Facebook walls — a Social Networking Liabilities Risks and Rights of Employees and Employers Even if your company doesn't have an online presence, you can bet your employees do. What happens when the virtual world impacts the real one, and how is labour and employment law dealing with those impacts? WeirFoulds LLP partner Peter Biro tests your knowledge on social media and the law. public page. She then says: "Unfortunately, we don't have the right to discipline these employees because all of the postings were made from the employees' home computers outside of working hours." You are general counsel to a Canadian company. At the company's Christmas party, your chief financial officer, who has had a few too many celebratory drinks, tells you proudly that he has created an online blog on which he has said some very unflattering things about co-workers and the company. He assures you that it is all very humorous and that he has cleverly used pseudonyms so that neither the co-workers nor the company are expressly identified. He offers to show you the blog by giving you a password that "grants you access" to the blog. Upon reading the blog, you determine that the comments amount to insubordination and that the "fictitious" individuals and company could easily be ascertained by anyone who knows the CFO or the company. As in-house counsel to a Canadian company, you receive a complaint that derogatory statements about several of your company's employees have been posted on the MySpace wall of a co-worker. You determine the co-worker ought to be disciplined, as the comments have elicited complaints of harassment and intimidation that are permeating the workplace. When you confront the co-worker with your findings, he professes his innocence and says that he did not post those derogatory comments on his MySpace wall. Once you investigate further, you accept his version of events, but you terminate his employment for cause nonetheless because he should be held responsible for all the postings on his social networking site. Can employers discipline employees for online activity during regular work- ing hours even if such activity, including postings on social networking sites and blogs, does not pertain to the workplace or the company and does not in any way harm the employer or co-workers or are employees protected by a reasonable expectation of privacy with respect to such activity? INHOUSE FEBRUARY 2010 • 13 1 2 b 3 4 c) It b) Employers depends . a) Employers . . b) W a) Right ong r d) None cannot of you c) Y the ou granted the ) You ou a) Y co-workers access cannot r should above. to the terminate or terminate the company employee ecommend the the blog. b) W a) Right ong r employee for . termination because because he cause. he did confided cannot can not in discipline discipline expr you and identify essly employees employees in in such such cir cir cumstances. cumstances.

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