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.

Employees often take work-related data with them when they resign or are terminated from employment.  In many cases, it is an inadvertent act that has happened over time by using their own device or email account to work after hours.

Emily Chung, technology writer from CBC News interviewed me and wrote the following piece, exploring the issue:

Employees often take private data when they leave:  Intentions not malicious, but practice still poses risk to companies

Most employees see nothing wrong with taking their employer’s confidential data out of the office — and about half even take it with them to their next employer, a study has found.

Meanwhile, even when they are not changing jobs, a majority of employees are putting sensitive corporate information at risk by transferring confidential corporate data to their personal devices, personal email accounts and cloud services such as file transfer service Dropbox, said the report titled, "What’s yours is mine: how employees are putting your intellectual property at risk"…

Click here for rest of article.

 

 

As I set out in my last blog post, "Who is Demanding BYOD?", the demand for bringing your own device to work may come from all corners and levels of the company. In this post, I set out the benefits of BYOD. 

Benefits:

1.      EMPLOYEE REQUESTS: The most obvious benefit to embracing BYOD is employee engagement and retention. If you are in an industry full of creatives, Gen-Y or tech savvy employees, it’s a no brainer and you probably had BYOD before we all came up with the catchy label.   Giving employees choice and respecting different preferences can demonstrate progressive workplace culture and nurture employee loyalty. 

On the other hand, if you are in a necessarily conservative industry such as the military equipment manufacturing industry, it is likely also a no brainer that security issues may outweigh any potential benefits. For the many companies in between these two extremes, employee engagement and retention may be one of a number of benefits to consider.

2.     CLIENT OPTICS: Certain clients in certain industries may have a preference for one type of device over another. If you are visiting a Blackberry dependent tech client in Waterloo, whipping out your iPhone is both rude and stupid. If your client is in Cupertino, your Canadian loyalty may not be quite so impressive. Allowing BYOD flexibility to support various platforms may be essential to reflecting business reality.

3.     INCREASED PRODUCTIVITY: BYOD may positively impact employee productivity. Letting people connect their tablet to the company email and document system may facilitate convenient and more frequent after hours work. Rather than lugging a cumbersome laptop home, employees can use their tablet to finish up a document or clear out their email after the kids go to bed. Business travellers, trade show attendees and salespeople on the road all may find BYOD a critical piece to maintaining productivity out of the office.

4.     COLLABORATION: Linking up devices may encourage people to connect together more frequently, leading to more collaboration and more effective communications. 

5.     COMPANY COST SAVINGS: An obvious bottom line benefit is that the company is no longer on the hook to pay for the hardware. Employees insisting on their own type of device and want to simply connect what they already have can eliminate a line item in the company’s technology budget.

 

In addition to various other benefits, there are, of course, risks and costs associated with BYOD. Stay tuned for my next blog post to round out this rosy picture. 

My next posts on BYOD:

  • Risks & Costs of BYOD
  • Developing a BYOD Program

As employees increasingly demand to use their preferred electronic device in the workplace, employers are working through whether the “Bring Your Own Device” (BYOD) concept is a good idea, or an employee perk to ban for security and cost reasons. In my next few blog posts, I plan to explore the issue and take a look at the pros and cons, and to set out how to implement an effective BYOD program for those workplaces that are going to jump in.

Consuming & Pushing Out Content

Smart phones and tablets continue to change how we consume online content, communicate with each other and participate in social media. I recently upgraded my device and have been pleased with how much easier and quicker it is to sync my social media platforms and to post or tweet on the spot. It turns out that the kids these days are not spending all their time in front of a screen tweeting each other, but rather, staying on top of technology makes social participation seamless and efficient to do on the go.

The Lure of Mobile Across the Ages

We cannot underestimate the allure of the mobile device, and employers who try to ban such extensions of an employee’s social system without good reason are likely to face resistance. Beyond all the stereotypes of Gen-Yers needing to tweet out what they just had for lunch, the more powerful call for BYOD may come from your higher end executives who have set up their electronic infrastructure at home and want their mobile device to match – out of efficiency, a reluctance to waste time learning multiple platforms, or perhaps perceived status of one environment versus another.

Whether it is Apple for your Boomer’s excessive jazz collection on his beautifully designed minimalist machine (speaking of stereotypes) or PC because your Gen-Xer still prefers to get at the motherboard to customize and upgrade her own engine power, employees come with all kinds of non-work related reasons for BYOD.

The C-Suite Demand

The other surprising corner from where the BYOD demand appears to be coming are C-suite executives who, according to one study conducted by Wakefield Research for Avanade, are focused on the benefits of what can be accomplished outside the office walls. Their IT decision makers, on the other hand, are still focused on how to minimize potential risks.

Here are some other findings from that same study, which surveyed about 600 C-level executives and IT decision makers in 19 countries:

  • More than six in ten companies (61 percent) report the majority of their employees now use personal computing devices in the workplace.
  • More than half (54 percent) report the majority of their employees use smartphones for basic work tasks such as reading email, online documents and calendar invitations.
  • One-third (33 percent) report the majority of their employees use tablets for basic work tasks.
  • More surprisingly, the exact same number of respondents – 33 percent – report the majority of their employees are using tablets for advanced business purposes such as CRM, project management, content creation and data analysis.

Like social media, or desk top computers before that, or the new-fangled telephone before that, the allure of technological development continues to be the increased speed by which we can access information and communicate with each other. The modern variety of devices upon which to do this are increasingly vast.

Stay tuned for my next posts on BYOD:

 

My nominations for the 2012 Clawbies (Canadian law blog awards) are:

1. Donna Seale‘s Human Rights in the Workplace – again.  She continues to be one of the individual voices out there that churns out great content, is not backed up by a big marketing department, and is a go-to resource blog for me.

2. The employment boutique Crawford Chondon’s blog, The Employer’s Edge, has consistently turned out brief, readable and relevant content throughout 2012.

3.  Professor Doorey’s Workplace Law Blog is always controversial, opinionated and full of Professor Doorey’s passion for workplace issues.  I may not always agree with his posts, but I’m always engaged in his writing.

Good luck to everyone.

 

Paramedics and other emergency workers face unique communication issues when on duty.  Speed, constant availability and focus are paramount.  So how does one check their smart phone email, update their Facebook status or tweet out an update?  Turns out they don’t.  At least not in some of the organizations that are starting to ban personal electronic devices in the workplace because of the realities of an emergency worker’s day to day job.

I spoke at the Manitoba EMS Conference, InterAct2012 last weekend and met a lot of smart, friendly, and talented people.  I presented on social media in the workplace, an issue which has a number of unique nuances when the employee is busy driving emergency vehicles and saving lives.  Click here for a copy of the power point presentation.

Here are few of the issues EMS workers face in our evolving social media world.

Patient Confidentiality

Patient confidentiality regularly winds its way throughout the case law involving health professionals.  Health professionals are governed by provincial privacy legislation and are usually trustees of the personal health information they interact with throughout their day.  There is a very low tolerance in the case law for revealing confidential information.

Social media gives rise to challenges around inadvertent disclosure of patient confidentiality, which in several cases has led to termination of employment.

An example is in Credit Valley Hospital v CUPE in which a hospital employee was called to clean up after a patient had tragically committed suicide in the parking lot.  The deceased patient had already been removed, and the employee took two pictures of the scene, posted them to his Facebook and added this comment on one photo: “Mother pleads with kid not to jump off PRCC side of the parking lot but did anyways poor thing”.  Through his comment, he revealed the age, medical information and location of the patient.  His termination was upheld at arbitration.

Safety

Given the intense, emergency situations that EMS workers regularly find themselves in, the issue of safety is frequently raised.  With many provinces now passing laws prohibiting the use of any hand-held electric device while driving, the usual safety concerns also interact with traffic laws.  A brief call on the cell phone, a quick text or a mindless glance at the Twitter feed all while driving are safety issues, let alone a PR disaster when such conduct is noticed by the public.

And yet, EMS workers are human too – they have spouses, a social life, daycare workers to communicate with, co-workers to interact with online, time to kill when waiting on a call for hours in the hallway of a hospital.  This tension will no doubt continue to be part of the lively conversation between EMS providers and their unions.  How does the school of a paramedic’s child contact him during the day when his child is sick?  Can’t co-workers shoot each other a quick text about a job related task?  Management will continue to point out the infrastructure in place to contact workers on a call should there be a personal emergency, and at the end of the day, providers generally prioritize the safety of patients and employees when on duty.

BYOD

Many employers are starting to adopt a “bring your own device” approach in the workplace, largely in response to employee requests.  The opposite is happening in some EMS workplaces, however, given concerns around patient confidentiality and safety.  Some EMS employers are simply banning any personal electronic devices in the workplace.  When the purpose of such a policy focuses on safety and patient confidentiality, rather than curbing employee conduct, it will be difficult for employees to resist such a policy.

As social media continues to infuse every corner of our lives 24/7, it will be interesting to watch the EMS world, and to see how health care professionals will balance the tension between personal desire for access to the online world, and the practical realities of the job that present challenges to such access.