Dynamic Duo Advantage… • TJ and Taryn have partnered up to offer: • Legal analysis + practical HR application • Social Media is about legal compliance, good HR management practices and common sense • Our goal is to impart all three with clear, practical tips • We want to engage you … AND have a little fun exploring this interesting and evolving topic • We are also gonna ask you to participate with your smartphones (stay tuned!)
What’s On Our “Wall” Today… • Social Media: Pre-Employment Period • Social Media Background Checks • B.C. Privacy Commission Guidelines on Checks • Social Media: During Employment • Where Social Media Intersects with Work • Examples of behaviour that crosses the line • Cyber-bullying and the Workplace • Effective Workplace Social Media Policies • Social Media: Broader Considerations • Post-employment considerations • Brand, Info & Reputation Protection
What’s Being “Posted”: Social Media Statistics… The news headlines and examples are not surprising given the 2013 statistics: • 1 out of 3 Canadians surveyed reported to checking their social media feeds at least once per day; • 63% of internet users, and 93% of social media users have a Facebook page; • Nearly 7 out of 10 Canadians surveyed identified themselves as regular users of social media generally Source: Media Technology Monitor
What’s Being “Posted”: Social Media Statistics… • In July 2011, Ipsos Reid reported that: • 50% of all Canadians have a social media profile • 86% of Canadians ages 18 – 34 have a social media profile • 62% of Canadians ages 35 – 54 have a social media profile
What’s Being “Posted”: Social Media Statistics… • 181,000,000 blogs on internet • 645,750,000 active Twitter users • Over 400,000,000 Tweets Daily • 4,000,000,000 YouTube Videos viewed daily • 350,000,000 photos uploaded to Facebook daily • 15 hours and 33 minutes per month • Average time users spend on Facebook
Yes, we want you to turn on your phones • Step 1 : Turn on your cell phone. Seriously. • Step 2 : You will see a question soon appear on this slideshow, alongside a Code # • Step 3 : Text your answer to 37607 (Alberta area code) or log on to PollEv.com • Step 4 : Sit back, and watch the Poll results. • Note : Your standard text message rate will apply, BUT your number will be kept private
This is only a Test…. How many social media accounts (e.g. Facebook, Twitter, LinkedIn, Instagram…) do you have? (a) Zero (b) 1-2 (c) 3 or more POLLEVERYWHERE SLIDE HERE
The (Inter)Net Result…. • Social Media use, and misuse, significantly affects today’s workplace and raises a number of questions for employers: • Can I use a social media background check? • When is off-duty social media use by an employee disciplinable? • Do I need a workplace social media policy, and, if so, what are the best practices? • Should I worry about employees cyber-bullying? • How do I deal with ex-employees?
Social Media & the Pre-Employment Period • Reference/background checks are critical tools in assessing a candidate’s suitability for employment • Background checks come in a variety of forms: • criminal record checks • credit and consumer reporting checks • motor vehicle record checks • educational/credential checks, etc. • Employers now frequently turning to social media • Consider postings, photos, blogs, comments • What rights and obligations does an employer have?
Poll Question I use Google or Social Media to look up/check out job candidates before hiring Yes or No POLLEVERYWHERE SLIDE HERE
Social Media & the Pre-Employment Period • Two legal factors should guide your way: • BC Human Rights Legislation • Prohibits discrimination on the basis of a number of grounds, including criminal charges/convictions unrelated to the job • BC Privacy Legislation • Restricts the collection of personal information to what a reasonable person would consider appropriate in the circumstances, regardless of whether you had consent • Meaning: (a) Be reasonable with your search/check; and, (b) know you may not be able to make a hiring decision based on what you find in social media
Social Media & the Pre-Employment Period • BC private sector privacy legislation does not require consent when the collection of personal information is for “… establishing … an employment relationship between an organization and an individual”; • BC public sector privacy legislation similarly permits a public body to collect personal information if the information “ relates directly to and is necessary for a program or activity of the public body ” (e.g. employment); • There are basic notification requirements, however, under both legislations • See PIPA, s.10 • See FOIPPA, s.27(2)
Social Media & the Pre-Employment Period • “ Best Practice ” is to obtain consent BEFORE conducting a typical background check (including with respect to what you are checking): • This allows an employee to inform their current employer BEFORE they are contacted • Shows the employer is transparent, fair and reasonable • Are social media checks any different? • Wellllllllll… there are two sides to this coin…
Social Media & the Pre-Employment Period • IF information is publically available (i.e. open access/no privacy settings) and searchable on the internet then this information may NOT be, strictly speaking, private • BUT, BC’s privacy legislation dictates that employers should: • Limit the collection of personal information to what is relevant, appropriate, reasonable and necessary to fulfill a valid purpose • BC Privacy Commissioner also points out social media checks can lead to a number of risks, including collecting: • inaccurate or irrelevant information (over collection) • information on third-parties • information that legally cannot be used to make decisions (e.g. unrelated criminal offences)
Social Media & the Pre-Employment Period • A balanced and considered approach is needed to when conducting social media background checks: • Do not simply rely on the principle that the information may be publically available. Recognize the risks and plan to reduce them; • ALWAYS strive to be the “reasonable employer” • BEST PRACTICE – State on application forms or your website that you perform social media checks • This is a form of notice. It’s fair warning. It’s reasonable. • Recognize that this area of the law is rapidly evolving • Consult with the Privacy Commissioner’s guidelines • Speaking of guidelines… let’s review those now!
Social Media & the Pre-Employment Period • October 2011 - BC’s Privacy Commissioner published guidelines for organizations and public bodies using social media sites for background checks of prospective employees, volunteers and candidates • Guidelines are not, strictly speaking, binding…but… • Employers are still expected to act reasonably, and following guidelines generally part of that expectation
What the Privacy Commissioner Says... • The Guidelines identify exactly how employers can search social media sites: “There are many ways that employers can search for social media content about an individual. Micro-blogging sites like twitter have real-time search engines ( twitter.com/#!/search-home ) and sites such as Google Advanced Search ( google.ca/advanced_search ) filter results by criteria such as domain name and file type . … Employers can search for information from blogs using customized search engines like Google blogs search ( www.google.com/blogsearch )...”
Privacy Commissioner Guidelines... • Recommend employers conduct a privacy impact assessment before performing social media checks that includes : • What privacy law applies? • Identify the purposes for collecting personal info via social media; • Determine whether the purposes are valid, justifiable and authorized by privacy or human rights legislation; • Consider other, less intrusive measures to fulfill your purposes; • ID risks (e.g. over collecting or collecting inaccurate info) and put plan together to minimize risk; • Provide notice to individuals you may check what’s publically available • Remember individuals can complain to Privacy Commissioner…
Can You Ask for Passwords and Logins? • Many US examples where employers have required job candidates to provide Facebook login information • California, Delaware, Illinois, Maryland, Michigan, and New Jersey purportedly issued laws prohibiting employers from demanding social media passwords from potential employees
Can You Ask for Passwords and Logins? • BC Privacy Commissioner 2013 Keynote Presentation noted: While I can’t comment on the legality of a hypothetical situation... it is difficult to contemplate a scenario in which BC privacy law would authorize a public or private sector employer to require an employee to provide a Facebook password. …… Consent is not the silver bullet. This provision is extremely important because even if an employer obtains the consent of a prospective employee to use their Facebook password, I can’t see how a reasonable person would consider it a legitimate use.
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