Case Study: Facebook & Labour Law in Canada

This incredible story begins in Edmonton when a veteran worker began posting to Facebook about their direct management. Sometimes while on the job and sometimes from home.The statements were 'offensive' according to some sources. The employee may or may not have known but all of their posts were public based on their profile settings at the time.

This is how the posts were discovered by co-workers who communicated the nature of the posts to management. The posts were regarded as "reprehensible, grossly insubordinate, threatening, and openly defiant and contemptuous of management". Here is a small sampling of those posts...

The posts referred to one of the supervisors as "evil," a "bitch," a "hag," "C_unt" and "the devil". The other supervisor was characterized as a "yes man" and an "idiot". The posts also contained threatening language such as "DIE BITCH DIE" and "WRONG AGAIN BITCH you gonna be the one missing PERMANENTLY" - Field Law's Workwise Newsletter.
Around the same time... beginning in June of 2009 Facebook started experimenting with changes to the site that were altering user's privacy settings and started new users with 'open' profiles by default:
These changes may or may not have effected this particular user. That information remains unknown as the date the user started using Facebook and their original privacy settings are not known. The posts were so extreme that the employee was ultimately dismissed. The union representing the employee filed a grievance. The case went to arbitration and weeks later I received an email requesting my expertise. Honestly when I first received the email I had a hard time believing it.

Around this time I began working at BCIT and was appearing in the media speaking about the barefoot bandit, political social media gaffes and social media charlatans. I had also been lucky enough to develop courses at BCIT. These things and a strong LinkedIn profile along with an honest and transparent online persona spurred a law firm in Edmonton to reach out to me.

The conversation was interesting to say the least. The information communicated to me demonstrated that the need for individuals with the knowledge and skills to discover information about social networks in these types of cases is large and growing. Young lawyers may have used Facebook or Twitter since they were teenagers but they don't necessary understand these networks in enough detail to be of assistance in these detail orientated cases.

The work was around what's called an  agreed upon 'Statement of Facts' that both the griever and the defendant agree to. I was tasked with analyzing and creating an accurate statement about the state of Facebook at the time of the incident. If the grievor challenged any items in the Statement of Facts I would be required to take the stand as an expert witness. This was an interesting position to be in. The other lawyer would be challenging me as an expert in the field while I was on the stand. The grievor eventual agreed to the 'Statement of Facts' and I wasn't required to testify.

I'd love to talk more about my opinion on the case and the circumstances surrounding it but I am unable to comment on the specifics of the case at this time as the decision may be subject to a judicial review(an appeal). It is therefore not appropriate to publicly provide my opinion on the outcome of the decision. Although I can share with you the case study as published publicly by the law firm I worked for. They also quote some of the posts made by the employee on the first page. Be sure to read it through as it is extremely insightful and interesting.

This emerging and interesting new field of the law has definitely gotten me excited to do more work like this. It also spurs some interesting questions for me: What is an expert? What is a reasonable person? How would a reasonable person be expected to understand Facebook's privacy settings? Questions abound, but more importantly what do you think of the case?

Invasions of Privacy: Facebook Employee Passwords

You're in a job interview; nervous and optimistic, when suddenly you are asked to hand over your personal phonebook, diary, scrapbook and family correspondance....

It's not quite like that. What people are being asked for is their Facebook login and password. This is an invasion of privacy. Job candidates and existing employees are put in a very compromising position when they are first asked. According to UK employment lawyers cited in the Telegraph prospective employees being asked for their usernames and passwords isn't illegal.
I think it’s very dangerous and unnecessary to start asking people for access into their personal lives. Once you start asking people to reveal everything about themselves, which is irrelevant to their ability to be able to do a job, you are getting into a tricky area. It’s the equivalent of getting people to spy on prospective staff down at the pub before hiring them. It’s also quite a lazy way by bosses to get a full picture of somebody and shows that their interviewing process is unsatisfactory.” 
- Sarah Veale, Head of Equality and Employment Rights, Trades Union Congress.
It's a quagmire for both employees and their employers. Both groups should be most concerned with
what can be seen by others on the Facebook page. A simple Facebook search can help with that. Organizations shouldn't be asking employees for this information unless it pertains directly to the job or the employee has/is publicly bashing employers past, present or future. What matters is:
  1. Is the employee publicly connected to the organization?
  2. Does the employee talk about specific work related business on Facebook where others can read it?
  3. Does the use of Facebook effect the relationship between the employee and their work?
Saying yes to each item makes what is done publicly matter to the organization and for good reason.  Organizations are overreaching requesting administrative access yet potential and existing employees are not getting hired and losing their jobs. Facebook has chimed in on the topic and in no uncertain terms says that it doesn't support this practice:
"In recent months, we’ve seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles or private information. This practice undermines the privacy expectations and the security of both the user and the user’s friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability. 
The most alarming of these practices is the reported incidents of employers asking prospective or actual employees to reveal their passwords. If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends."
In the United States spotlight grabbing politicians are pushing the Feds to investigate this issue. Some originally insinuated that Facebook would take legal action against employers who asked for logins and passwords. This was recently rebuffed by Facebook. According to some less sensational reports the practice is pretty rare, for now. In Canada the practice may be even rarer as the Canadian Charter of Rights and Freedoms prohibits this type of request based on discrimination. According to the Spec:
"There is no law that particularly prohibits an employer from asking for that password. It does not specifically violate any privacy legislation. But, by asking that question, employers expose themselves to complaints of discrimination under human rights legislation. 
Both the Ontario and Canada human rights legislation prohibit discrimination in employment on the basis of, among other things, race, ancestry, place of origin, ethnic origin, citizenship, creed, sexual orientation, age, family status, marital status or handicap. That’s a long list of things you wouldn’t usually learn during a job interview. It is contrary to human rights legislation to ask questions with respect to these issues." -
I will soon be publishing a case study I worked on recently where an employee was fired for what they posted on Facebook. The dismissal was supported by a ruling by an outside arbitrator. Asking for your Facebook login and password is a preventative measure in the minds of some of those who ask, but surely over steps the bounds of human rights and common decency.  Would you want to work for an organization that demanded your login and password for Facebook?

Maturing at the Lectern: Confidence

photo by: @jeremylim
Confidence. The word itself is powerful and complex. The concept maybe even more so. It is said the greatest fear people have is public speaking. For others it's not only a fear, but a thrill, a joy, a privilege and a delight. Recently during a day of back-to-back speaking engagements I started to feel something more than at ease in front of the audience. I felt able and prepared to lead a learning exploration. To field their questions and prepared to go 'off track'. Most of all, I like the audience to be in control.

The following presentation was prepared as a Professional Development lunch and learn for a real estate development firm in Vancouver. The audience was great and the boardroom was packed full. The presentation has a Personal/Professional Development focus. This presentation was created from scratch specifically for this purpose.

Earlier that day I had the opportunity to speak to Health Care Professionals at the Four Seasons Hotel in Vancouver during a health care Quality Forum as part of 'Health Care Social Media Camp'. This is the kind of work that I do upon request. The following presentation was designed to incorporate some older elements of my 'intro to social media' presentations. I also brought in a strong focus on health care with specific items around policy and a complete section of examples of implementations for health care in social communications...
Standing in front of both audiences I felt an unusual sense of calm. Nervousness when speaking in front of people often drives my presentation energy. In these cases I felt confident that I could deliver on the expectations of the audience while allowing them to guide the presentations. Being prepared and knowing the audience ultimately helps lead to that confidence. It's different depending on what capacity one is speaking in and what kind of event it is. What do you find as an audience member? As a presenter?