Canada's aggressive new Anti-Spam legislation came into effect on July 1, 2014. A key component of the legislation is that the sender must receive consent (approval) in order to send someone a "Commercial Electronic Message." A CEM is defined as "any electronic message that encourages participation in a commercial activity, regardless of whether there is an expectation for profit."

This blog is not a comprehensive review of the legislation or a list of everything your organization needs to do to comply. Instead, we will focus on the "people" aspects that impact HR professionals and business managers.

Build awareness among your team members:

• Get all team members to include an "Unsubscribe" option at the bottom of each email message. Many companies are already putting security and privacy disclaimers at the bottom of each email already. Best practice would be to include a link to your website where people can opt-out or explicitly opt-in and your webmaster can track it.
• Employers are expected to keep track of consents and withdrawn consents, which can be tricky since an "opt out" request could come into anyone in the organization. Establishing a centralized location for this data is critical, as is training all employees on what to do with such a request.
• Update your company's employee policies and procedures with respect to CASL and ensure that are employees are aware of the changes. Consistently discipline team members who are in breach of these policies and procedures.
• Your organization should provide CASL training for all employees (even those who do not typically send CEM messages) and it as part of your ongoing new employee orientation program.
• Audit all the communications that go out from your organization and treat ongoing CASL compliance as an ongoing project for the entire business (with a designated project manager).

Some of the exceptions to the need for explicit consent:

• Internal messages between employees, provided that they relate to the activities of the organization
• Any communications with a former employee, such as sending information related to benefits, payouts, Records of Employment, etc.
• Communication that represents the completion of a transaction (including sending an invoice for services provided)
• Existing business relationship (employees may continue to send emails to clients)
• Existing non-business relationship and CEMs have been sent previously
• Personal relationship exists
• Any communications related to warranty information, product recalls and safety/security information

Real world example: 

• An employee sends out a company-wide email informing everyone that Girl Guide cookies are available for sale in your lobby. This is a CEM, but is it exempt? 
• It depends. If everyone in the office is known personally by the sender (as in a small business), then it would be exempt. But for large organizations with thousands of employees, this would not be exempt and the sender might get in some hot water.

What about Social Media posts? 

• Posting on your LinkedIn, Twitter, or Facebook pages is not considered a CEM, especially since people have to agree to "like you" or "follow you" to see those messages. 
• However, if you send someone an unsolicited message via direct message, this could be considered a CEM and subject to the legislation. This is particularly relevant for users of LinkedIn's premium services that allow you to send "InMail" messages.

What about recruiting new employees?

• There does seem to a potential issue in sending unsolicited emails to prospective employees. Finding ways to gain consent will be a necessity.
• Outsourcing this function to a 3rd party "headhunter" firm will not absolve your company of liabililty.
• "Vicarious liability" means that if an external company doing business on your behalf is not compliant, both your company and the offender will be held liable.
• Ask for proof of CASL compliance from any external recruitment firm you utilize.

Want to learn more about establishing employee policies and procedures?

You should attend Clear Path's upcoming "Setting the Rules of the Game: Creating an Effective Employee Policy Book" session. It is being held on November 6th and will cover a wide variety of topics, including CASL Compliance policies. Click here to learn more or to register.

Yet another social media “oops” has surfaced in the news – and this time, it happened in Canada. This past Monday, three Toronto firefighters were terminated based on comments they made on social media. This recent decision was met with heavy criticism and sparked anger from their union, which insists that the firings do nothing to promote a culture of respect in the city’s fire hall (Source: City News). 

What makes this case a little different from some of the other “social media blunders” we’ve seen in the past, is that their terminations resulted from a month-long investigation into the firefighter’s tweets and other social media posts. Toronto Fire Chief Jim Sales said that the investigation was launched after a media report in August said two firefighters had posted several posts on Twitter that were seen as degrading to women (Source: City News). Many of the posts in question were direct quotes from television shows like The Office and South Park.

Here are some of the tweets under fire from firefighter Matt Bowman (@Hero_Matt): 

A few months later, firefighter Lawaun Edwards posted the following response to a friend’s tweet:

Upon learning of these tweets last month, Bowman and Edwards were both suspended with pay (Source: The Star). However, Sales has said that they have now been let go along with a third firefighter who has not yet been identified. The investigation discovered a “pattern” of inappropriate social media use and public comments that were in violation of the city policies (Source: City News).

As employees of the City of Toronto, firefighters are required to follow the city’s social media guidelines. These guidelines state that:

In a statement to the press, Jim Sales (on behalf of Toronto Fire Services) went on to say that: 

In response to these terminations, the Toronto Professional Fire Fighters Association (Union) issued a public statement reading:

So what do you think about these recent terminations? Are you siding with Toronto Fire Services on this one or the Toronto Professional Fire Fighters Association? Leave your comments below.

Let’s think back to 8 years ago, where Facebook was not yet a household name, Twitter was non-existent, and LinkedIn was only just starting to become established. It’s amazing how much can change in less than a decade. Since then, the use of social media has exploded. Facebook now has over 1 billion monthly active users, Twitter has an average of 58 million tweets a day, and LinkedIn has become a central networking tool for over 200 million professionals worldwide. Because of this, social media has also successfully weaved itself into the workplace.

From employees posting negative things about their employers on Facebook and Twitter, to a discussion about the ownership of your social media connections, the news has been flooded with countless stories about social media and its impact in the workplace.

"FIRE ME...Make my day"

In a recent case, a woman was involved in a group discussion with some of her fellow co-workers on Facebook where she ranted about her employers and pleaded to be fired. Well, let's just say she got her wish. One of her colleagues took a print-out of the rant to her managers and she was promptly fired.

The employee then sought the help of the National Labour Relations Board claiming that she had been fired in retaliation for protected concerted activity. It was decided that she was not entitled to proceed with the case. (Source)

Situations like this have been plastered all over the news in recent years. From elementary school teachers posting inappropriate photos of themselves on Facebook, to frustrated employees ranting about work in their status updates, some people have little to no discretion when it comes to what's posted on social media. This case just goes to show you some of the consequences that can come from that and the importance, as employers, of having a social media policy in place. Check out one of our past blogs on the topic.

Social media for recruitment and selection

The relationship between the workplace and social media is not always a negative one however. More and more, employers are using social media to their advantage - not just as a means to connect with their client and prospect base, but as a means to bring top talent into the workplace.

Social networking sites expand the once limited options for recruitment and selection. Many employers use these sites as tools to recruit candidates who might not normally apply.

In a recent survey done by the Society for Human Resource Management (SHRM), a number of interesting statistics surfaced around the relationship between social networking websites and the recruitment and selection process. Here is some of the data that was pulled:

Owning social media content

"Who owns the social media content created and maintained in the course of employment? Work product is traditionally the proprietary interest of the employer. But there’s something different about social media content." Source

When it comes to the connections you make on LinkedIn, the relationships you form with potential clients, and the networks you form while in an occupation - who exactly owns those contacts? Do they belong to the employee on the LinkedIn account or to the employer? That's the debate.

Most would agree that the key purpose of LinkedIn is to either generate business in your current occupation (increase your employers client base) or to generate business and connections for the next position (networking). Yes, it is true that the network developed an nurtured by an employee on a LinkedIn account is a crucial tool for them to have in their career, but it is also true that employers have a good reason to assert a proprietary interest over its customer list. So which is it?

The LinkedIn User Agreement is between the individual and LinkedIn. This means that, despite the "proprietary interest" argument on behalf of the employer, all connections made ultimately belong to the employee. Traditional standards have been shaken up by this rise in social media - something that testifies to the importance of being up-to-date with all the changes.

One thing has been reaffirmed after all these cases and debates surrounding social media - the importance of implementing social media policy in your workplace.

This hot topic is one we will cover in our Employee Policy Manual learning session held in September 2013. Visit our website for more information.

The story about the Ontario man fired from  a retail store due to insensitive online posts about the death of Amanda Todd, is not the first time we've seen a story like this. 

More and more we are seeing companies run into trouble when it comes to their employees using social media. Now, more than ever, companies need to be including a social media policy in their employee manual. With the future of employees being a generation that grew up online, specific rules and guidelines must be set out so companies can avoid stories like the one above.

​Where do I begin?

Social Media Today posted a list of 100 companies and their social media policies that they have implemented. This is a place to start and get ideas on what needs to go into your policy.  

Something to think about

"A big issue is the tradeoff that employers expect employees to make. If they want their employees to be available 24/7 and are giving them BlackBerry's and PC's to contact them outside of business hours, it is inevitable that people are going to use those devices on their personal time as well as business time. That's an inevitable consequence of asking people to be on call beyond eight hours a day" -Frank Addairo, Mitchell LLP

What should employers do?
​

• Identify what is considered inappropriate use of devices

• Have clear, written policies that your employees sign off on

• Update your policies to reflect many recent changes in technology

• Make sure employment contracts and policy manuals reference ability to monitor e-mail and Internet use

• Have policies and procedures to conduct random audits of company equipment and investigate allegations of misconduct

Basic rule of thumb:
An employer has no authority over what employees do once they're off the clock unless the employer can show its legitimate business interests are affected.

Social media has taken the world by storm and developed into an unbelievable method of communication. Facebook, LinkedIn, Twitter, and Instagram etc. have expanded our approach to sharing thoughts, ideas, opinions, blogs, videos, and photos. These resources allow us to stay updated through a push of a button and get connected with one another in new ways. Businesses are starting to take advantage of these platforms to connect with customers and get real-time thoughts and opinions about their company and their employees. As Social Media redefines the future of business, savvy employers are staying ahead of the game by adding the specifics about Social Media use to job positions and procedure manuals.
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Younger workers are most likely going to have their own Social Media accounts that allow them to connect with their own friends and family and they will be very comfortable translating this over to their work life. Developing your expectations regarding when and how Social Media can be used in the workplace is a must. Unmonitored Social Media use can result in an unfocused workplace and declining productivity. The language of Social Media is also very different and should be considered. Should the use of jargon which is becoming more and more embedded in today's social culture, phrases like "omg" (Oh My Gosh), "lol" (Laugh Out Loud), "nbd" (No Big Deal) be used in the workplace? Some may argue it is appropriate to be current and fully connected, others may argue it is unprofessional. How about sharing photos with peers and customers? What about the type of content your employees may be posting for example to company Facebook pages? Should Social Media usage be tracked? Have you updated your employee policy manuals with respect to Social Media recently? With your employees connecting with potential customers or each other on these various platforms, it's critical to establish your expectations along with procedures surrounding appropriate use.

As Social Media continues to change the way we communicate, remember to customize your policies to fit with your company's potentially changing goals and objectives. Staying on top of your employee policies and update your books may be a daunting task. Need assistance with revising an existing or developing an employee policy manual? Clear Path can help! Check out our workshops for more details or give us a call to discuss your specific questions.

Many employers are still feeling bewildered about how far they can go in monitoring employee use of social media inside and outside the workplace. Liabilities such as a damaged company reputation and workplace conflict are serious concerns for employers.

Recent judicial decisions are showing us that information shared on social media, blogging and internet communication forums via sites like Facebook or Twitter are not private, and are published with the knowledge that it could be viewed by members of the public. Melanie Reist; a civil litigation lawyer and partner of Kitchener firm Morrison Reist, recently highlighted some landmark decisions from arbitrators, tribunal members and courts in the March/April 2012 issue of Exchange Magazine.

• Case #1 - Union alleged that an employer wrongfully terminated two employees. The employees had made posts on their Facebook profiles which included rants about workplace frustrations. The board found the comments "offensive, insulting, and disrespectful". Some comments were directed towards a supervisor using terms like "The Fixed Ops/Head Prick", "half-a-tard" and more vulgar terms. These two individuals also made allegations that the supervisor was in a sexual relationship with a male teenager and encouraged their connections to not give the organization their business because it "ripped off customers". The board's verdict was that the conduct amounted to serious insubordination, damage to the employer's reputation and supported termination for cause.

• Case#2 - Pilot was terminated for posting derogatory comments regarding the company's owners on Facebook. The arbitrator stated that when an individual is using the internet to display commentary or opinion, the individual must assume there is a potential for world wide accessibility to the statement. The comments were found to have had a "real and material connection to the airline and gave reason to the company to have both substantial and warranted concerns about potential reputational harm."

These cases help show that employers do not have to feel like they are fighting a losing battle against "the social media monster" if they have a clear written policy in place. The digital media age is changing constantly and it's important for employers to recognize that a consistent policy is an essential tool if you are in a situation where you need to dismiss an employee for a social media/internet related misconduct. (Read Melanie Reist's recommendations  for a social media policy on Page 44 of Exchange Magazine).

Your policy and how it will be enforced should be clearly communicated to all employees. You can ensure that consequences for breaching the policy are clearly understood through the use of real world examples. In our previous blog, "You Cannot Control the Use of Social Media, but You Can Manage it Effectively" (visit social media blog section) we outline what constitutes non-permissible behaviour" and some free tools at your disposal to monitor internet communications.

If you would like to discuss creating how to implement an acceptable Internet Use and Social Media policy, please contact Anna Aceto-Guerin directly at (519) 624-0800 or via email at anna@clearpathemployer.com