April 20, 2011

Can employees be disciplined for comments they make about their employer on Facebook? What if they believed that their privacy settings were such that only a few “friends” could see their posts, but were mistaken? The explosion in the use of the internet and social media is straining the line between public and private communications. This, in turn, is having an impact on how adjudicators assess the appropriate balance between employees’ expectations of privacy in their electronic communications and employers’ rights to access information about their employees that may impact on their businesses. Join Lancaster’s panel of experts, who will address the following issues:

  • Expectation of Privacy: Is there a reasonable expectation of privacy in relation to comments posted on one’s Facebook page? Does the answer to this question depend on one’s privacy settings?
  • Pre-Employment: What are the privacy implications of an employer conducting online searches as part of the background check of a potential employee during the recruitment process? Is information about a candidate posted on a publicly accessible blog or social networking webpage “personal information?”
  • Surveillance: Is it permissible for employers to monitor an employee’s computer and internet use in the workplace? What elements should be set out in a company’s policies regarding monitoring and surveillance? Does an employer’s tracking of employees through social networking systems amount to the collection of personal information that may be subject to applicable privacy legislation?
  • Co-Workers: How has technology changed the access employees have to business information and personal information about co-workers? Given the broad distribution capacity of email, blogs, and social networking messages, what standards have arbitrators placed on employees respecting the privacy of co-workers?
  • Discipline: Can an employer discipline an employee for negative comments made about the employer on a blog or on a social networking website? Does it make a difference whether the employee uses the employer’s computer or work time to post the offensive remarks? When employees use social media to air their views of the workplace, might they also be breaching duties of confidentiality vis-à-vis their employer, co-workers or others? Is there a requirement that the employer prove actual harm to its reputation before it can discipline an employee for derogatory remarks? If an employee disparages another employee on Facebook or through other social media, does the employer have the authority and/or responsibility to intervene?
  • Evidentiary Issues: How can information appearing in social media be monitored, captured and preserved so that it is admissible and reliable evidence? Is an employer entitled to access to an employee’s Facebook account if it suspects that it may contain evidence of misused sick leave?

This audio conference has been approved by the following:

  • The Law Society of British Columbia for 1.5 Continuing Professional Development hours.
  • The Law Society of New Brunswick for 1.5 Continuing Professional Development hours.
  • The Law Society of Saskatchewan for 1.5 Continuing Professional Development hours.
  • This 1.5 hour program can be applied towards 9 of the 12 hours of annual Continuing Professional Development required by the Law Society of Upper Canada. Please note that these CPD hours are not accredited for the New Member Requirement.