Who owns your LinkedIn connections?  I’ve blogged about the ownership of social media content a few times already (here, here, and here) and I continue to believe that the real battle will be over connections made in the course of business. 

Are these connections your extended network that you brought into the employment relationship that you can take with you when you leave?  Or are they the employer’s customer list in which the employer has a proprietary interest?

Traditionally, employers owned the customer list, and most employers will likely continue to believe that for some time to come.  But increasingly, we are seeing individuals demand ownership over their own online social network.

The Canadian Eagle Case

This is the core of the US cases, Eagle (LinkedIn) and PhoneDog Noah (Twitter).  There is also some Ontario law that pushes forward this concept that online social media contacts may not necessarily belong exclusively to the employer.  For example, in the summary judgment case of Eagle Professional Resources Inc. v. MacMullin, 2013 ONSC 2501(Ont. S.C.), confirmed on appeal yesterday, the court held that three employees did not breach the non-solicitation provision of their employment contract when they allegedly contacted their former employer’s customers. 

Can “Publicly Available” Information be Confidential?

The employees argued that they did not actively approach any of their former employer’s customers, but to the extent that they did continue to work in their field, they relied on “publicly available” information.

It is established law (and common sense) that a company cannot assert confidentiality over otherwise publicly available information.  In the Canadian Eagle case, the employer argued the customer information was taken from an internal database.  The three defendant employees argued the customer information was publicly available online from social media sites such as LinkedIn:

27 In this case, there is no evidence from Eagle, other than a very bald assertion, that it had any proprietary interest entitled to protection. According to the Defendants, the information that they learned at Eagle was all publicly available and obtained from such sources as social media websites.

As a summary judgment case, the decision is brief and does not go into detail about the nature of the social media sites, who owned them, whether they were the companies’ or the employees’ sites, or whether the online public sources were open to anyone in or beyond the company.  All we know is that they were “publicly available”, essentially eliminating the employer’s proprietary interest over such content.

There are, of course, various intellectual property laws available to prevent people from stealing content or scraping from another person’s or company’s website.  What remains less clear, however, is the extent to which an employer can ascribe a confidential value to something that is publicly available. 

But the Telephone Book is not Confidential

One colleague of mine has commented that the concept is not new if you think about the traditional telephone book.  The difference, however, is that the value of the list is derived from WHO is on that confidential list, not what is their telephone number or email address.  In other words, who cares who lives in Toronto?  As an employer, I would want to know which specific individuals in Toronto will want my business, and that is the list I would want to protect and prevent employees from taking with them and competing against me.

What to do?

The LinkedIn account is a contract between the individual and LinkedIn, but employers who anticipate a lot of active LinkedIn participation on behalf of the company should consider some sort of additional agreement between the employer and the employee.  This agreement could set out the parameters of use, who speaks on behalf of the company, and most importantly – who owns the content, some of which is produced on company time and on company equipment.

The law is quickly evolving on social media content, but there is no doubt that many of the headaches could be avoided with strong contracts upfront, entered into when the parties are still friends.

 

Yesterday, the Ontario Court of Appeal tripled the fine awarded against a construction company that failed to ensure the safety of its workers:  R v Metron Construction.

Facts

In the late afternoon of December 24, 2009, five workers who were restoring the concrete balconies of a high rise in Toronto fell from a fourteenth floor swing stage platform. Four of the five workers died, the fifth worker who survived suffered serious permanent injuries. The sixth worker – the only one who was properly attached to a safety line – did not fall and survived uninjured.

Details of the original judgment are set out in the July 2012 trial judgment of R v Metron Construction Corporation.

Criminal Conviction – Trial Judge

The company was the first in Ontario to be charged and convicted under the new Criminal Code provisions that make it a criminal offence to direct a worker to perform a task without taking reasonable steps to prevent bodily harm to that worker. See sections 217.1, 219 and 22.1(b) of the Criminal Code for the specific provisions upon which the crown relied.

The trial judge fined the company $200,000 plus the Victim Fine Surcharge of 15% or $30,000, which was over 3 times the net earnings of the business in its last profitable year. The trial judge concluded that the penalty was “the appropriate disposition in this case and should send a clear message to all businesses of the overwhelming importance of ensuring the safety of workers whom they employ.”

Court of Appeal Triples the Fine

Yesterday, the Court of Appeal tripled the penalty, fining the company $750,000. The Crown had sought a fine of $1 million, arguing that the court should not restrict itself to the range of penalties under the Occupational Health and Safety Act. The Court agreed with the merits of that argument:

[87] Section 718.1 of the Code states that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. A range of sentences established under the OHSA regulatory regime does not reflect the gravity of the offence of criminal negligence causing death. The OHSA cases that attracted fines of between $115,000 and $450,000 and that were relied upon by the sentencing judge are of limited assistance.

The Court also concluded that the penalty for such a serious offence with such a tragic consequence must be increased to ensure deterrence:

[115] A sentence consisting of a fine of $200,000 fails to convey the need to deliver a message on the importance of worker safety. Indeed, some might treat such a fine as simply a cost of doing business. Workers employed by a corporation are entitled to expect higher standards of conduct than that exhibited by the respondent. Denunciation and deterrence should have received greater emphasis. They did not. The sentence was demonstrably unfit.

The Court of Appeal has sent a very clear message to employers: worker safety is paramount, and companies will pay dearly under the Criminal Code if found liable for worker injury or death.

 

Does racism necessarily lead to a poisoned workplace?

At the end of last month, the Ontario Court of Appeal concluded in General Motors of Canada Limited v Yohann Johnson that while the former employee, Johnson, “genuinely believed that he had been the victim of racism in his workplace” and that his “perception of events unfortunately led to stress and mental anguish”, the evidence did not support Johnson’s claim of a work environment poisoned by racism or constructive dismissal.

In a fairly rare move, the Court of Appeal overturned the trial decision because it disagreed with the trial judge’s factual conclusions, rather than any significant concern with the application of law.

Facts

In that case, Johnson, a black man, was a production supervisor in the body shop at GM’s Oshawa assembly plant. Among his various duties, he was responsible for training group leaders in the body shop on a new system of policies and guidelines.

One employee named Markov refused to train with Johnson. Based on a number of factors and statements by co-workers, Johnson claimed that Markov refused to train with Johnson because of race. The Court of Appeal accepted the evidence that Markov refused to train because of an insensitive remark Johnson had allegedly made to Markov a few years earlier.

The company conducted three different investigations, and each time had concluded that Markov’s refusal to train with Johnson was not motivated by race. Markov, in fact, had agreed to take the training with another supervisor who was of colour.

What remained a significant challenge at trial was that Markov had unfortunately died before trial, so his credibility and his version of events could not be admitted or tested.

Medical Leave

Johnson eventually took a medical leave, asserting disability arising from discriminatory treatment due to racism in his workplace. He was absent from work for the next two years, after which he met with the company’s doctor, who concluded that Johnson was fit to return to work.

The company offered Johnson two different positions, both of which were approximately a kilometre away from the assembly plant body shop, offered to adjust Johnson’s shifts and possibly his supervision. Johnson declined the offers, maintaining he was disabled from working in any GM plant, but provided no medical information to support the claim. Johnson remained concerned that he would run into certain employees, including Markov.

Two months later, the company wrote to Johnson, who had still not returned to work, to confirm the offered employment opportunities, and concluded that in the absence of any medical support for the continued absence, Johnson was resigning from the company.

Johnson’s Litigation

Johnson sued for damages for constructive dismissal and a poisoned workplace based on racism. The Trial Judge agreed with Johnson and awarded him various damages.

The Court of Appeal overturned the decision, concluding among other things that Johnson failed to establish systemic or institutional racist behaviour:

“I agree with GM’s submission that a single incident of this kind, with a single employee, over the course of an eight year working relationship cannot objectively ground a finding of a work environment poisoned by racism.” (paragraph 71)

The Court of Appeal made several conclusions in support of the company, including the following:

  • there was no evidentiary basis to support that Markov was racially motivated in his refusal to train with Johnson, or that Johnson was required to return to a poisoned work environment when the company offered him two different positions;
  • Johnson did not have the right to dictate where he would work or the employment role he would assume on his return to work;
  • an objective standard governs the determination whether a workplace is poisoned, by reason of racism or harassment, not just the subjective perception of the plaintiff; and
  • the company was “not obliged to immunize Johnson from any future contact with Markov or other body shop employees”, and the mere possibility of contact with the employees does not alone establish that such exposure would result in future discriminatory treatment of Johnson.

Take-Away for Employers

The onus of establishing a poisoned workplace is on the employee making the claim. It is not an easy hurdle to meet, and must be based in solid, objective evidence.

The Court of Appeal was sympathetic to Johnson’s genuine belief that he had been the victim of racism in his workplace and that he had suffered personal anguish as a result, but it could not conclude that Johnson’s belief was sufficiently supported by objective evidence.

The critical step to all workplace human rights complaints is to ensure that all complaints are taken seriously, and that a well-trained person conducts an objective, detailed investigation and thoroughly explore the issues, interview witnesses and fully document the entire process.

Because at the end of the day, it doesn’t really matter what we all perceive to be the facts – we have to prove them to obtain a legal remedy.

 

A couple of readers have asked to what extent US based social media cases will apply in Canada.  We don’t yet have a large body of social media cases in Canada (other than run of the mill termination cases involving social media), so there tends to be a lot of discussion up here about US based social media cases.  Given that the US population is 10x larger than Canada’s population, it makes sense that there is simply a much larger volume of American caselaw to work with. 

For novel issues in general, Canadian courts will often take into consideration cases from other countries in the Commonwealth and the US. 

So for the world of social media, where many of the issues remain novel and unlitigated, US cases may be influential on our own adjudicators looking for guidance and analysis.  While US cases are not a binding legal precedent, they may provide an important backdrop to a Canadian decision.

A good example is the Eagle v Morgan et al. case (for a commentary on the piece, see my recent blog post here).  In that case, one of the three successful claims was for a breach of the former employee’s privacy tort of intrusion upon seclusion by appropriation of identity.  However, while Dr. Eagle won certain of her legal claims, she was unable to prove any actual damages and therefore was awarded $0.

Dr. Eagle may have had a better result in Canada.  Last year, the US tort of intrusion upon seclusion was introduced into our jurisprudence through the Jones v Tsige (2012 ONCA 32) case (discussion in a past blog post here).  The court adopted the US tort, but with a critical difference:  there is no requirement to prove harm to a recognized economic interest in Canada to be awarded damages. 

Paragraph 70 and 71 of the Jones v Tsige case set out the elements of the tort as follows:

c) Elements

[70]         I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

[71]         The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum. [emphasis added]

Thus, while Dr. Eagle failed to obtain any damage award in Pennsylvania, in Ontario at the least, she may have won her claim and received an award notwithstanding her failure to establish harm to a recognized economic interest. 

Damages for the Ontario tort are capped at $20,000, so it remains to be seen whether that relatively low cap will discourage people from spending big legal fees for a fairly low win.  The tort will no doubt be coupled with more fruitful claims in most situations.

Take-Aways

There are two key concepts to take away from the relationship between the Eagle and Jones cases:

1.     Canada is not a US State, and indeed a different country with different laws.  Yes, really.  Check on Wikipedia if you don’t believe me: http://en.wikipedia.org/wiki/Canada (English) or http://fr.wikipedia.org/wiki/Canada (French).   

2.     US cases do influence our laws, although not as a binding legal precedent, and always filtered through our Canadian legal lens that tends to result in more employee-friendly results.

 

Who owns your LinkedIn content?  As described in my last blog post, the battle over who owns social media content, and particularly LinkedIn connections and any other social media “customer” list, has yet to come.  LinkedIn content will likely be where employers and companies may have a financial motivation to fight for the content, depending on how the social media content was used in the course of business.

The Eagle v Morgan et al decision came out in March, and is one of the few cases to date that provides some insight as to where the courts may go on social media content.  This is a Pennsylvania case, but some of the underlying legal concepts may be applicable in Canada, albeit not as a direct precedent. 

For a full review of the facts, see Sara Hutchins Jodka’s summary on the Employer Law Report blog.  For some good analysis about the case, Daniel Schwartz has discussed the case a couple of times in his blog, Connecticut Employment Law Blog.

The Facts

As with most law, the case turned on its particular facts:

  • Dr. Linda Eagle co-founded her banking education company and she was a key sales generator and face of the company;
  • She provided her staff with her LinkedIn password, and directed them to maintain her LinkedIn account, including updating content, responding to messages, and expanding connections;
  • The company heavily used senior executive LinkedIn accounts to expand the company’s network and to generate business;
  • Dr. Eagle and her co-founders sold the company in October 2010, but stayed on as employees until they were terminated by the new owners the following June 2011; and
  • Immediately upon termination, the company changed Dr. Eagle’s LinkedIn password, replaced her photo with that of her replacement, and changed most but not all content.

Needless to say, Dr. Eagle was ticked.  She gained access to her account within a number of weeks, but only by going through LinkedIn directly.  

Dr. Eagle sued her past employer for a long list of claims, winning on the following:

  1. unauthorized use of name
  2. intrusion upon seclusion by appropriation of identity
  3. tort of misappropriation of publicity.

For most of us mortals, we’re simply not important enough to have any sort of celebrity name that can be misappropriated for any monetary value.  In this case, however, Dr. Eagle remains a leader in her field and organizations hire her for her unique skills.

The Decision

The bittersweet twist in this case is that while Dr. Eagle successfully proved her first three claims, the court held that she had not established any monetary damages, and was therefore awarded $0.  Although she did prove her point that the company misbehaved very badly, it is a rather hallow victory.

Take-Aways

So who owns social media content?  The Eagle case suggests that the owner of the LinkedIn profile does, even when that owner expressly directs the company’s staff to maintain and develop some of the content.

The company had unsuccessfully counter-sued Dr. Eagle, arguing that her LinkedIn connections belonged to the company.  Similar to the types of arguments put forth in Phonedog, those connections are already in the public domain, making the proprietary claim a bit of a stretch.

This is why social media connections are not simply a Rolodex to which the employer can claim ownership.  Social media connections/followers/friends are not particularly private, confidential or even unique.  It’s a collection of relationships, which may or may not be directly related to the employer, even if the employer’s staff has developed many of those connections.

We’ve now seen a move in the law towards recognizing who may own the content, and in the absence of crystal clear employer policies, it will likely be the employee.

What remains to be seen is how to commodify content and relationships.  Who cares who owns the content and relationships if they are legally worth $0.  Most of us, however, have a gut feeling the value is a good deal more than $0.  Social media isn’t just social – it’s business too.

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. 

A blog created by a company employee during company time on a company computer with a focus on the company’s products may be straightforward – the blog and its content are owned by the company.

LinkedIn: Where the battle will likely take place

But what about LinkedIn?  I’ve blogged about the @PhoneDog_Noah case and the ownership of Twitter followers in the past, but the future battle will no doubt be focused on LinkedIn. While the LinkedIn User Agreement is between the individual and LinkedIn, the reality is, a key purpose of LinkedIn is to either generate business in one’s current occupation (i.e. increase your employer’s business), or to generate business and connections for the next position (i.e. for the next employer). 

The question is whether the development of connections and of one’s network in general is as a result of one’s individual personality, or as a result of one’s association with a company name. In other words, do people connect with me because I’m a lawyer at XYZ LLP, or because of my individual personality/voice? I suspect in most cases, for most people, it’s a combination of the two. 

And it’s this combination that makes LinkedIn different than a traditional Rolodex. A company’s customer list is the company’s property, and a departing employee cannot take that list with her. 

But in the modern world of social media, do you take your LinkedIn connections with you? I’m guessing 100% of us believe that we do – it’s our own individual account. And LinkedIn would agree. But will your employer?

You Own My Relationships?!

A Gen-Y employee would find it rather unseemly that their relationships with their colleagues, friends, and general network is somehow owned by one’s employer. None of us expect to stay with the employer for 30 years anymore. Compiling, developing and working hard to nurture our network of relationships is a critical tool of business that we need to take with us. 

Conversely, employers have a good reason to assert a proprietary interest over its customer list. 

Let the battle begin.

Stay tuned to my next post where I will debrief about the Eagle v Morgan case, one of the few cases out there that has gone to trial on the issue of LinkedIn content ownership.    

 

Continue Reading Who Owns Work-Related Social Media?

The Olden Days

In the olden days, like, in 2003 before we even had Twitter or LinkedIn or smart phones smarter than the first rockets into space, “face time” only meant spending time in the office long into the evenings so that the managing partner/boss/bonus committee saw us squirreling away at our desk looking busy, profitable and devoted. 

Enter Gen-Y

Ask your local 15 year old teenager whether the time spent communicating with their friends via their device is “real” interaction with their friends. They’ll give you that blank, silent stare that says, “I feel sorry for you and your people and their lonely lack of understanding of how the real world works. And I shall now Tweet about this sad and oppressive situation to all of my followers.” 

Gen-Y is redefining how we interact with each other. The innate comfort with communicating by technology means that they value such interactions in a way that we old folks over 40 will never understand. Forcing your 25 year old employee to stay in the office for the sake of staying in the office just to watch each other work doesn’t resonate with how they interact with each other. 

For Gen-Y, “facetime” includes communicating through technology, not just sitting side by side at a boardroom table chit-chatting about the weather.

The Yahoo Experiment

Marissa Mayer believes that in order to rebuild a collaborative, innovative culture at Yahoo, she had to pull all of her employees back into the workplace. Yahoo is a tech company, and yet its CEO believes communications by technology are not enough to foster a productive workplace. I have no doubt she had plenty of data upon which to base this decision, and she’s not some 90 year old anti-technology curmudgeon, so I watch with great interest whether her decision will trigger some sort of internal renaissance, a great departure of talent, or a neutral cultural shift, but slight boost in productivity. 

The key for most workforces – whether or not fledging and in need of renewal like Yahoo – is to balance the real value of good old-fashioned in-person relationship building with forced in-person facetime beyond that which is effective to nurture collaboration, productivity and employee trust. 

Employers who understand and respect that Gen-Yers build meaningful and real relationships with each other through their smartphones and devices, will be far better positioned to understand why they may roll their eyes at expectations of in-person “facetime”, when they are readily accessible at the touch of a keyboard 24 hours a day. 

Gen-Y wants to work hard as hard as any other generation – but they expect to do it differently because they are growing up in an entirely different world.

[My thanks to Ye Xia, a very hard working Gen-Y articling student in my office who shared this insight with me.]

photo credit: <a href="http://www.flickr.com/photos/aforgrave/6168689222/">aforgrave</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-sa/2.0/">cc</a>

In this fourth piece on Bringing Your Own Device to work, I build upon my past posts that set out the benefits, costs and risks of BYOD.

So you’ve now decided to jump in (or some other reckless decision maker in your organization has), and you now have to develop your BYOD program.  Here are five tips to consider when rolling out your BYOD Program:

  1. Policies: Policies are an essential backdrop for employers in our Canadian, contract-based, non-at-will employment law environment. Whether you have a formal written contract for each employee or not, a properly drafted and executed workplace policy can lay out the details for a BYOD program, articulate parameters around device use during and after work hours, and set out expectations of privacy.

By setting out these expectations, the employer can then rely on the policy document to discipline or dismiss an employee who fails to adhere to the workplace rules. Conversely, an employee can look to the policy for clarity on how he or she can use his or her device in the workplace.

  1. Content of Policies:   A BYOD policy should include provisions that speak to the following issues: exactly what devices are permitted; that specific security programs should remain updated; that work-related content developed on a personal device is the intellectual property of the company; that the security of the company server will prevail when determining when to remote wipe a lost device; that the employee has no expectation of privacy in any device plugged into the company system. As set out in R v Cole, while an employer can only lower, and not eliminate expectations of privacy on a workplace computer, here is the moment and place to set out language to articulate employer expectations around privacy issues. 
  2. Context: The policy should remain in context with your workplace and industry. There are rarely good “off the shelf” solutions, and policies should be an organic document that reflects workplace culture, workplace demographics and the vision of where the company is going. A careful cross-reference with other workplace policies will ensure consistency and ability to use policies in conjunction with each other. For example, the workplace harassment, discrimination, privacy, data security and/or confidentiality policies all should be read together to present a uniform approach to electronic information and devices. 
  3. Privilege: It may be useful to articulate that the BYOD program is a privilege, not an entitlement, and that the employer reserves the right to revoke the privilege should an employee abuse the BYOD program. 
  4. Termination Protocol: Finally, employers should turn their mind to how they will deal with personal devices when an employee resigns or is dismissed. If the device has a lot of confidential information and/or the employee has remote access to the server, there should be a checklist ready to go should the employment relationship go south and proactive measures need to be triggered urgently. Your IT and HR team should be working together with management to develop a termination protocol for all electronic data, including such data on personal devices.

For most workplaces, BYOD will be a non-starter within a couple of years. Developing the protocols and policies, and having open discussions about what both employers and employees want/need will eliminate the growing pains often associated with adopting new devices and technology.

For more information on the benefits, cost and benefits of BYOD, feel free to visit my past posts:

Has your workplace adopted BYOD? I’d love to hear how it’s going, and whether you have any other tips to add to the list.

Photo credit: aforgrave via photopin cc

 

As I set out in my previous blog posts, the demand for bringing your own device to work continues, and is largely driven by the many benefits of embracing BYOD. In this post, I set out some of the costs and risks of BYOD.

  1. INCREASED TECHNOLOGY COSTS: For every benefit to embracing BYOD, there is the other side of the coin. While BYOD may eliminate some hardware costs, your IT team now has to be up to speed on more than one system. This may involve costs for more than one security regime, as well as ongoing training to support different software and hardware requirements.
  2. OVERTIME EXPOSURE: The after hours productivity may also create exposure for unapproved and unintended overtime pay. The slow death of the 9-5 work day and increasingly blurred lines between work and play require clarity around expectations for after-hours work. BYOD could mean more non-work related activities by day and more work related activities by night.
  3. CONFIDENTIALITY: Not every position is BYOD appropriate. For positions that involve particularly sensitive information or in a smaller company where there aren’t the technical resources to let one rogue employee have their own technological infrastructure, the risks and costs may outweigh the benefits.

Emergency service providers are a category of worker that may present practical obstacles too tricky to overcome. See my post on “Social Media and the EMS Employee” from last October. Some EMS employers are simply banning all electronic gadgets so that their employees can focus on driving and/or on the patient in front of them, and to avoid liability issues along the way.

In determining whether a position is “appropriate” for BYOD, I would hesitate to draw conclusions from how senior a person is in the organization.  I recall seeing President Obama using his Blackberry during his first presidential campaign and wondered then about the confidential and sensitive nature of the information on that device. Presumably, someone has figured out the security and confidentiality issues in that case.

  1. PRIVACY: Employers must recognize that they can lower but not fully eliminate expectations of privacy on a workplace computer through effective policies (see my blog post on R v Cole, “Privacy & Porn on Workplace Computers“). Having said that, employees must realize that they give up some privacy when plugging into the mothership.

Security protocol, for example, might demand that the IT folk be able to remotely wipe a device clean when it goes missing on the subway. There goes the picture of your daughter losing her first tooth or the video of your boyfriend’s drunk dancing at your co-worker’s wedding (which probably shouldn’t have been on there in the first place, but then, you weren’t exactly sober either when you filmed it).

  1. SABOTAGE (OR MORE LIKELY, IMPROPER USE) : While electronic sabotage more frequently happens in those novels that you have a fake slip cover for, permitting personal devices in the workplace could lead to heightened risk of industrial sabotage, or at the least, a pain in the neck unauthorized access of the server through a personal device.

For example, in Hendrickson Spring v United Steelworkers of America, Local 8773, the employee connected his cell phone to a company laptop to access the internet and watch videos unrelated to company business. He was caught again two weeks later, and during the ensuing investigations, denied everything. He was terminated for misappropriation and improper use of company computer hardware/software, improper access of the internet through the company’s computer system, and improper skirting of the company firewall, all on company time.

His termination was upheld at arbitration: he had a relatively short service with three previous disciplines. The deal breaker appears, however, to have been the arbitrator’s finding of dishonesty and lack of credibility.  While no data was lost and no industrial sabotage occurred, the employer had to expend resources and time to defend the termination. Whether the employer had banned all devices or embraced BYOD, the cost remains that there will always be those vexing employees who take the issue too far.

While not at the top of likely risks to actually unfold in your workplace, sabotage does happen. In an older labour arbitration case out of Quebec, Telebec Ltee and ACET, the employee was terminated for the sabotage he committed when he wiped his computer clean of information on his way out the door. His termination without cause due to a restructuring made this otherwise discipline-free employee lash out at his computer, and he deleted ten days worth of work data and various formats and methodology for which only the employee was responsible. This converted his termination to cause.

The case is not strictly a BYOD case, but it does highlight the vulnerability of electronic information when accessed by a ticked-off employee. Increasing electronic entry points to the server through BYOD will force your IT folk to stay on their toes. (And to show that the more things change the more they stay the same, the Telebec case relies on knitting machine caselaw to set out the threshold for upholding a termination for industrial sabotage.)

Weighing the risks, costs and benefits of embracing BYOD will vary from industry to industry, and company to company.  All of your employees no doubt already have some sort of device in their pocket, already putting the company at risk of inadvertently tweeting, posting or emailing out confidential information during or after work hours. Pulling that device into the workplace and setting up transparent and engaging policies may help mitigate the risks of a phenomenon that will likely continue to gather speed, with or without workplace blessing.

Okay, fine, I give – BYOD it is. Now what? Stay tuned for my next blog post:

  • Developing a BYOD Program

 

Last week, a friend sent me a link to the Toronto Star article, “Bay Street law firm uses fingerprint technology to monitor employees’ comings and going”.  The subtitle is, “The days of sneaking out of the office for three-hour lunch breaks will soon be over at one Bay Street law firm.”

According to the article, a Toronto firm will begin requiring all staff, except lawyers who spend much of their time with clients, to clock in and out of the office with a figure swipe.  The founding partner explained that “some people were abusing the system” and that this was a way of keeping track. The system is expected to go live in November 2013.

Oh where to begin.

First, the glory days of Mad Men are over.  Long liquid lunches, or any regular lunch other than a quick wolf-down in the food court, are in the past for any lawyer I know.  As billable hour targets continue to creep up, as both men and women want to play a more hands on role at home, and as partnership tracks get longer and more challenging, most lawyers want to just get to it, get it done and get home.  And if lawyers don’t meet target, the time entry system will shed light on the numbers and everyone can sort it out before year’s end.

Ultimately, I would think the time entry and billable hour system already serves the same purpose as any fingerprinting technology could for lawyers.

For non-time keepers, where is HR in all of this? If an assistant is regularly taking a 3 hour lunch, doesn’t anyone notice and proceed to have a discussion with him or her? If that doesn’t do the trick, then move on to some progressive discipline.  At the risk of over simplifying this, I remain curious why the HR function is being outsourced to technology.

Perhaps a person is 3 hours late each day because of her medical treatments, or is taking a longer lunch to attend his AA meetings. HR’s critical role is to figure out the human element of the situation, work through any human rights issues, and apply the workplace rules and procedures.  No machine can do that.

Whether or not the employer is entitled to install a finger printing system is beside the point. While technology can be an exciting tool for remote working, convenience, quick communications and seamless integration between the office and client services, it can also apparently degenerate into a vehicle for Big Brother employee surveillance in the place of an effective HR mandate.