When it comes to social media, the reality is that many employees fail to use common sense
I recently attended the Society for Human Resources Management (SHRM) annual conference in Atlanta. For those unfamiliar, this conference is the largest gathering of HR professionals in North America (and presumably the world).
To answer the question that you may be wondering, and that I was asked many times in Atlanta — “Why is a Canadian HR lawyer attending this conference?” — the vast majority of my time is spent working with HR professionals. While I certainly attend legal seminars in order to keep up to date on the law, I find it more useful to engage with and learn from the HR professionals that are dealing with issues "on the ground." This helps me to understand the needs and concerns of the clients I work with, as well as the developing issues and trends.
As I often say, I can provide a legal perspective but issues must be considered within the overall context of the organization and its business strategy. I try to advise my clients regarding the risks of potential options, and then I encourage them to evaluate the options based upon all of the potential benefits and risks, and not just the legal ones.
In addition, it allows me to network with potential and existing clients. In particular, I find attending conferences in the United States to be helpful because so many of the companies I work with are based in the U.S. but have Canadian operations. Much of my time is spent advising clients in the U.S., Europe and elsewhere regarding HR law in Canada.
I was fortunate to be allowed into the blogger’s lounge at the conference, and I observed a panel discussion on the issue of whether employers should have social media policies. I was surprised that some of the panellists took the position they should not. Essentially, their view was the use of social media, like many other issues, comes down to common sense and there is no need to treat employees like they are “stupid.”
Obviously, these comments have to be taken in context — those speaking work in jurisdictions where employment at will exists and it is not particularly difficult to dismiss an employee without risk, or an obligation to pay a substantial package. In Canada, dismissal for cause is difficult and it is always helpful to be able to identify a specific policy the employee has breached in order to justify discipline or dismissal.
With respect to social media, the reality is many employees fail to use their common sense. Over the course of the conference, I heard many horror stories detailing what employees had done online, often with company-owned devices.
My recommendation remains the same as it has been in the past: Employers should have social media policies that are updated regularly in order to address new technologies and concerns. Like any policy, these should be publicized and explained to all employees (including management and supervisors) and routinely enforced. They should also be detailed enough to explain what is, and what is not, permissible.
I would be interested in hearing what our readers are doing in this regard. Please feel free to post your comments and experiences.
Stuart Rudner is a partner in the Labour & Employment Law Group of Miller Thomson LLP, a national law firm. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (905) 415-6767 or [email protected]. You can also follow him on Twitter @CanadianHRLaw and join his Canadian Employment Law Group on LinkedIn.
