1. Six Social Media Issues for Employers
Lawyers
Dan Michaluk
Osgoode PDP – Employment Law 2011
December 12, 2011

2. Six Issues for Employers Lawyers
• Issue 1 – Use for hiring purposes
• Issue 2 – Off duty conduct
• Issue 3 – Use on behalf of the company
• Issue 4 – Ownership of accounts
• Issue 5 – Attacks by the aggravated outsider
• Issue 6 – Evidence preservation in practice
Six Social Media Issues for Employers Lawyers

3. 1. Use for hiring purposes
• Law
• If privacy legislation does not apply, then right to
collect is unlimited
• If privacy legislation does apply, then the necessary
collection rule may bind
• In any event, human rights considerations require
checks through a careful process
Six Social Media Issues for Employers Lawyers

4. 1. Use for hiring purposes
• Practice
• Consider notification (review applicable statutes)
• Look for objective, relevant information
• Not the decision-maker
• Report in writing
• Verify the accuracy
• Preserve the report on the hiring file
Six Social Media Issues for Employers Lawyers

5. 2. Off duty conduct
• Law
• Duty of fidelity applies when employee expression is
likely to negatively affect a legitimate employer interest
• All other activity is “private”
• The analysis is contextual, norm-defining
• “Conversation” is the metaphor people use for social
media communications, but the law sees social media
communications as plain old publication – see Leduc v.
Roman
Six Social Media Issues for Employers Lawyers

6. 2. Off duty conduct
• Practice
• Go beyond a policy, have a internal communication
campaign (see Victoria DOJ video)
• Tell them you will treat publications to friends as
publications to the world
Six Social Media Issues for Employers Lawyers

7. 3. Use on behalf of the company
• Risks
• Too many employers are not controlling the
employees who speak on their behalf
• Risk 1 – Public affairs disaster
• Risk 2 – Representation gives rise to liability
• Risk 3 – Wage and hours claim
Six Social Media Issues for Employers Lawyers

8. 3. Use on behalf of the company
• Practice
• Most important policy rule – you don’t speak on our
behalf unless we tell you
• Second most important policy rule – if you speak on
your own and people may be confused, you must
use a disclaimer
• Then, deputize your non professional
communicators… train them… control them by using
a “streetlight” framework
Six Social Media Issues for Employers Lawyers

9. 4. Ownership of accounts
• Ownership
• For accounts that are…
• …company created
• …company branded
• …maintained by paid employees
Six Social Media Issues for Employers Lawyers

10. 4. Ownership of accounts
• Practice
• If there’s any question about who will own it, give a
clear written direction to the password holder
• Password control is essential… re-take control
before having any kind of tough talk
• Don’t go to war with a departed employee he/she
owns the followers in heart… they’ll just follow him
elsewhere
Six Social Media Issues for Employers Lawyers

11. 5. Attacks by outsiders
• Law
• You have a duty to provide a safe and harassment
free workplace (OHSA, HR Codes)
• When this duty is engaged, a takedown effort will not
necessarily be required to discharge the duty
• You don’t have a recognized duty to help vindicate
an employee’s reputation (Tipple)
Six Social Media Issues for Employers Lawyers

12. 5. Attacks by outsiders
• Practice
• Tell managers not to react and over-promise
• Message carefully – don’t take responsibility for
reputational harm
• Deal with the impact in the workplace and refer to
sources of personal assistance (EAP)
• Tell them to get independent legal advice
Six Social Media Issues for Employers Lawyers

13. 6. Evidence preservation in practice
• Who? Not external counsel
• What? The full context
• When? Immediately, periodically
• How?
• Printouts are probably okay (browser or screen cap)
• Signed, dated and time stamped by hand
• Record information about relevant links between
pages
Six Social Media Issues for Employers Lawyers

14. Dan Michaluk
416-864-7253
daniel-michaluk@hicksmorley.com
Twitter - @danmichaluk
http://ca.linkedin.com/in/danmichaluk
http://www.allaboutinformation.ca
Six Social Media Issues for Employers Lawyers

15. Six Social Media Issues for Employers
Lawyers
Dan Michaluk
Osgoode PDP – Employment Law 2011
December 12, 2011