Clear Path Blog

Despite the fact that 60% of business executives believe they have a right to know how employees portray themselves and their organization in online social networks, only 17% have programs in place to monitor and mitigate possible reputational risks. (Source: 2009 Ethics & Workplace survey, Deloitte)

The spread of Social Media like Facebook and Twitter has offered new opportunities for employees to release confidential company information, disrespect a fellow employee's privacy, and create a hostile work environment.

Employees now have the ability to post, tag and ‘like' content on the internet that can be defamatory for an organization's employees and/or brand. These acts can occur both in and out of the workplace, and while an employer can not control what their employees do in off-hours they can manage it!

The Best Defence is a Good Offence

Organizations should be proactive and define the difference between acceptable and inappropriate online behaviour, emphasizing the connection between an employee's conduct and your company's image.

Clear and reasonable policies should be prepared and effectively communicated to all (posting online will allow employees to access them from home if they are unsure about what they are posting). The policies should contain a warning that you reserve the right to monitor their internet use during work hours or on company computers. In addition, they should state that your company will take action upon those who post negative or inappropriate material involving your company while on their own time.

What constitutes non-permissible?

Non-permissible content can range from intentional discrimination, harassment or bullying towards other employees to the unintentional release of company confidential information. Even if an employee is expressing personal opinions on non-work topics, if they use their title/position, their comments may attribute to their employer, with potentially negative consequences for the business.

Examples of possibly defamatory acts done in off-hours:

• Employees post pictures of themselves in company uniform engaging in "inappropriate" acts
• Personal blog entry from frustrated worker complaining about being passed over for a promotion, naming supervisor and company
• Facebook page which includes name of employer and has postings about long hours getting ready for a new product launch
• Sending intimate personal messages using company technology

When it comes to the law the basic rule of thumb is that 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.

Once something is posted....

No matter efforts your company takes, it may be impossible to prevent something negative from hitting the web. According to a 2009 Deloitte survey, 49% of employees say defined guidelines will not change their behaviour online. Therefore, periodic monitoring of internet content should also be conducted:

• Set up Google Alerts and use TweetDeck to conduct real-time Twitter keyword searches to monitor social media use by employees (or others).
• Sign up for web domains, such as ‘yourcompanysucks.com' to halt opportunities for future brand damage

Ultimately, you must discipline (which may include termination for cause) any employee who intentionally breaches your company's acceptable internet use policy.

Real Life Brand Defamation

In April 2009, two Domino's Pizza employees posted a series of YouTube videos depicting themselves playfully tainting food products before allegedly passing them on to customers. With close to one million views, these three minute videos prove that anyone can easily attempt to undo all that's right about a strong brand using social media.

Next Steps

If you would like to discuss creating an Acceptable Internet Use Policy or any other HR related issues, please don't hesitate to contact Anna Aceto-Guerin at (519) 624-0800 or via email at anna@clearpathemployer.com.

By Katie O'Reilly, Clear Path Employer Services (2010)

Updates:

Nov 3/10: First known Canadian case of an employee being fired for their Facebook postings.

Nov 26/10: Toronto Star article detailing the shocking amount of time spent on non-work related internet activities by government employees (including illicit and even illegal content).

Using employment contracts for all your workers is an absolute must for employers - although many businesses don't use them consistently. In addition, companies need to be sure their actions don't cause these contracts to become unenforceable in the future - leaving them vulnerable to expensive employee payouts and the potential of lost revenue.

This blog entry will provide tips on making sure your contracts don't get thrown out by a judge down the road, including suggestions on how to draft critically important non-compete clauses.

Tip # 1: Don't have new hires sign contract on their 1st day (or after they've started working for you)

By doing so, the "contract" may be a complete waste of time since you have not provided "reasonable consideration" to the new employee and may be accused of coercion. A savvy employee may willingly sign the document at that time, knowing that it is likely to be overturned in the future if necessary.

To be valid, a contract must provide details of compensation and the recipient must be given sufficient time to review it in order to meet "reasonable consideration" requirements.

To avoid any suspicion of "coercion" and to keep it enforceable in the future, Clear Path recommends a new recruit receive their contract at least 3 days prior to their start date (7 days is even better). That way, the recruit has sufficient time to access independent legal counsel if they so choose. Even if a new recruit wishes to sign their new employment contract "on the spot," insist that they take it home with them.

Tip # 2: Include a non-compete clause in your contracts

Everyone knows the old adage, " an ounce of prevention is worth a pound of cure." Ask anyone who had a valued employee leave for a competitor that didn't take the time to carefully draft a non-compete clause, and they will surely tell you it applies.

A non-compete clause is a restrictive covenant that serves as a written agreement between both parties and protects the legitimate interests of the employer. These clauses help protect the employer from losing valuable customers, from having other firms "poach" their best employees, and from losing confidential information or trade secrets.

Tip # 3: Don't be overzealous in the wording

When a non-compete clause is ambiguous or over-reaching, it increases the risk of it being overturned by a court decision in favour of the employee in the future. Ensure your wording is clear and does not contain constraints that a judge may deem excessive or unreasonable.

Factors a court will scrutinize and may deem unreasonable include:

• Duration: Anything longer than 6 months is likely to be seen as excessive
• Geography: Forbidding the departing employee from competing with you anywhere across the country or planet will be seen as unreasonable. We recommend establishing a specific perimeter (i.e. 50 km in any direction from your head office).
• Activity prohibited: Although you may want to, a judge will likely not uphold a ban from doing business of any kind with your existing customers. For example, one of your sales people may wish to sell a totally unrelated product to your customers (i.e. coffee). You need to be specific in the type of business activity you wish to constrain.
• Customization: Courts will typically be favourable to clauses written for individual employees, rather than general agreements signed by the whole.

Help! I already have employees without a contract. It's not too late!

An employer can institute a contract for existing employees to sign at any time. Just remember that appropriate notice and consideration must be given, which usually involves monetary compensation. Ensure that you speak to a lawyer and/or HR professional before beginning this process.

Tip: It is recommended to bundle any request to sign a new contract with another event such as a performance review.

Conclusion:

Don't leave your company vulnerable to future issues. Consistently use employment contracts and non-compete clauses for all your employees. Draft them carefully, since being ambiguous or excessive in your restrictions can lead to the entire contract being thrown out - leaving you without any protection.

News Relation

A non-compete clause has recently sparked a public legal battle between Hewlett-Packard and its former CEO Mark Hurd, after he was hired by Oracle, threatening the release of trade secrets. http://www.ibtimes.com/articles/60661/20100908/oracle-hp-lock-horns-over-hurd-and-trade-secrets-who-will-win-and-why-2.htm

For more information or if you have any questions, please don't hesitate to contact Anna Aceto-Guerin, CHRP.

Article on www.payscale.com states that there is much to be learned (from an HR perspective) from the much-publicized case of a frustrated Jet Blue flight attendant who had a dramatic resignation, including a dramatic exit from the airplane, after dealing with an unruly customer.

The individual is being celebrated as a hero for all those who can empathize with the difficulty in servicing unpleasant customers. But HR professionals know that his actions reflect a number of issues that impact many workplaces.

Check out the article here.

The HRPA produced this tongue-in-cheek "Sopranos-style" humorous sketch, titled "The Capranos," detailing the necessary HR steps to follow before the participants could "whack" an employee.

The skit has proven controversial with some HR professionals. What do you think?

http://www.youtube.com/watch?v=UqMeH9-xDoc

Article outlines the idea of termination with cause and a unique situation where Human Rights came into play surrounding religion. The article gives some valuable lessons for employers.

Link to article