Category: Workplace Privacy

Social Media Use by Teachers and Students: OCT Recommends Limits

The Ontario College of Teachers has recently issued a professional advisory recommending strict limits on interactions between teachers and students through social media.  The advisory emphasizes that teachers are professionals, who are held to high standards of conduct, in both their professional and private lives.  Since inappropriate electronic communications with students – including those outside of school hours and unrelated to school matters – can lead to teacher discipline, and even criminal charges, the OCT recommends that teachers take certain precautions in their electronic communications, particularly through social media.  Among other guidelines, the advisory recommends that teachers:

  • not be “friends” with students on Facebook, refrain from “following” students on Twitter, and otherwise avoid personal connections with students on social media;
  • notify parents before using social media for classroom purposes; and
  • use appropriate privacy settings when using social media, to ensure that students may not access personal or inappropriate postings.

The recommendations are not surprising, given the high standards of conduct expected of teachers, and the perils teachers may face from inappropriate use of electronic media – as illustrated by the recent Ontario Court of Appeal decision in R. v. Cole.

Although specific to the educational context, the OCT’s professional advisory reflects the importance of addressing the impact which social media, and electronic media in general, can have in various settings.  Employers should consider whether the dynamics of their workplace justify guidelines or policies on the appropriate use by employees of social media, for example, in their interactions with each other or with customers, suppliers or other parties.

A link to the OCT’s professional advisory is here, and a related CBC article is here.

Arbitrator Picher Okays Collection of Personal Communication Device Records

Arbitrator Michel Picher issued a notable decision last June that recently came to my attention. He held that Canadian Pacific Railway could establish a policy of investigating serious accidents or incidents by asking employees to produce personal communication device records (with the content of messages and information about the identity of parties to communications redacted).

The company did a good job of establishing the serious risk of distraction posed by the use of personal communication devices and the need for the policy, which Mr. Picher upheld on an application of the Office of the Privacy Commissioner of Canada’s four-part reasonableness test. He summarized his views as follows:

As the cases cited above amply reflect, arbitrators are properly sensitive to the encroachment of employers into the personal and private lives of employees, particularly as relates to non-work related activity. The reasoning in those cases, however, has little or no bearing on the instant dispute. This grievance is about whether the employer can make reasonable inquiries to establish or rule out the use of a personal cell phone or other electronic communication device by an employee while he or she is on duty. To the extent that that inquiry relates only to a serious accident or incident and does not touch on the content of personal communications, it is difficult to see on what responsible basis it could be concluded that there can be no legitimate employer interest to justify the inquiry.

Mr. Picher did stipulate that the company limit its request to the period of time pertinent to its examination.

Canadian Pacific Railway Company and Teamsters Canada Rail Conference, unreported (23 June 2010, M.G. Picher).

Ontario Arbitrator Says Employers Entitled to More Than a Bare Medical Certification

On January 27th, Ontario labour arbitrator George Sudykowski issued an award about the scope of information employers may generally require in a medical certificate. He held that employers need not accept a bare statement from a doctor confirming an employee’s illness:

I agree with the thrust of the British Columbia jurisprudence that it is not inordinately invasive for an employer to ask that a medical certificate include the reason for incapacity, which would appropriately consist of a general statement of the nature of the disabling illness or injury, without diagnosis or symptoms. It is not unreasonable for an employer to require an employee to provide the reason for her absence or claim for STD benefits, and the mere fact that providing that reason (i.e. the nature of her illness or injury) may suggest a diagnosis does not excuse the employee from providing the reason in order to satisfy the onus on her to justify her absence and claim for benefits even in the first instance.

He also said:

I also respectfully disagree with Arbitrator (as he then was) Whitaker’s conclusion in Re Hydro Agri Canada, supra (at page 108), that an employer is generally not entitled to require that a medical certificate include the date(s) of the relevant visit(s) to the medical health professional who provides the certificate. Not only is this at best remote confidential medical information, the date of visit(s) will both tend to confirm that the medical health professional actually saw the employee for the purpose of the certificate, and will reveal the timeliness of the visit relative to the absence in issue, which is a relevant consideration.

Arbitrator Surdykowski rejected a seemingly impassioned presentation by the Union in which it argued the importance of medical privacy, the reliability of physician statements and the weak distinction between information about “nature of the illness” and information about “diagnosis.” Mr. Sudykowski said the Union’s case rested on “selective optimism.” He also acknowledged that the disclosure of information about the nature of the illness may indicate a diagnosis, but suggested that the routine disclosure of “nature of the illness” information for the purpose of medical certification is nonetheless reasonable and appropriate.

Providence Care, Mental Health Services v. Ontario Public Service Employees Union, Local 431, 2011 CanLII 6863 (ON L.A.).

Speeding Up Criminal Reference Checks

The federal government is implementing new digital technology to speed up the process for obtaining criminal reference checks.  This change will be welcome relief to employers who are required to perform criminal reference checks on employees or prospective employees, such as school boards and social services agencies.  A link to a CTV article on the announcement is here.

Workplace Privacy Here and Now

I had fun speaking at the OBA Institute privacy session today. I did a hot topics presentation on (1) the blurring boundary between work and private life, (2) access to stored communications on corporate systems, (3) PIPEDA application to employment in the provinces and (4) the remedial approach to dealing with employees who breach privacy rules.

Case references here:

HO-010 is quite the case for Ontario health information custodians. It’s controversial because of the following paragraph on dealing with employees who breach privacy rules:

For other staff members of the hospital involved, knowing that all of the details of the disciplinary action imposed will be publicly disclosed, should serve as a strong deterrent. This is especially true if those details also become known to other employees, either through the actions of the aggrieved individual, the custodian, or both. Employees must understand that, given the seriousness of these types of breaches, their own privacy concerns will take a back seat to the legitimate needs of the victims involved to have a full accounting of the actions taken by the health information custodian. Our primary concern must lie with the aggrieved party, whose privacy was completely disregarded.

This statement suggests (very mildly) that employers should publish information about the outcome of the disciplinary process as a means of remedying a data breach that is caused by intentional employee misconduct. As I comment in the slides below, this suggestion should be approached with great caution.

Thanks to the program chairs and the other speakers. I enjoyed the afternoon!

Facebook Postings Just Cause for Dismissal

The BC Labour Relations Board has found, in a recent decision, that an employer had just cause to terminate two employees who posted on Facebook comments highly critical of the employer and other employees.  The Board dismissed claims that the terminations were an unfair labour practice related to the employees’ support of a successful unionization drive.  Interestingly, the Board dismissed any privacy-related claims by the dismissed employees, given the large number of Facebook friends that they each had (100 and 377 respectively), including other employees of the employer.

The Special Case of E-Mail (as Electronic Evidence)

I attended and presented at Day 1 of  the Osgoode Short Course in Obtaining, Producing and Presenting Electronic Evidence.

Thank you to Chuck Rothman of Wortzman Nickle for fielding my question about preserving web based communications. He suggested that Adobe Acrobat does a good job of producing a reasonably true copy of web page renderings, but should be used in conjunction with good evidence handling practices – e.g., keeping a log of steps, hashing the file produced and so on. Chuck also mentioned Facebook’s new feature that allows users to download profiles as worth thinking about when dealing with Facebook preservation issues.

I presented with John Gregory on “The Special Case of Email.” John is a true authority on electronic evidence, and I’ve been lucky to do this presentation with him a few times now. Our slides are below.

For some of John’s materials on electronic evidence, check out his web page here. We also noted Stephen Mason’s excellent website as a resource on electronic evidence. It is linked here.

Owner with a site access drug testing policy not a co-employer

On January 11th, the Alberta Court of Appeal issued a significant site access drug testing decision in which it held the owner of a construction site did not co-employ a subcontractor’s employee for the purpose of Alberta human rights legislation.

The employee worked for a subcontractor on a construction site owned by Syncrude. Syncrude required all contractors’ employees to have a drug test as a condition of site access. The employee failed, filed a human rights complaint and succeeded in arguing that Syncrude was a co-employer before a human rights panel. The Panel chair stated, “It would be an organization façade to think that a company could circumvent human rights legislation by inserting a contractor between the company and the workers it requires to build its project.”

The Court of Appeal held that co-employment is possible under the Alberta Human Rights, Citizenship and Multiculturalism Act and articulated factors for assessing whether co-employment exists, but held that the Panel erred in finding Syncrude was a co-employer. It appears that Syncrude’s relationship with its general contractor and the various subcontractors on its site was nothing out of the ordinary. The Court commented:

It is Lockerbie & Hole [the complainant’s “true” employer] that must ensure that Mr. Luka’s rights under the Act are respected, and that any discrimination demonstrated by Mr. Luka is either a bona fide occupational requirement under ss. 7(3), or “reasonable and justifiable in the circumstances” under s. 11. Any duty to accommodate a disability that arises must be met by Lockerbie & Hole. Mr. Luka is not denied rights under the Act, but the burden of protecting them falls on Lockerbie & Hole…

If Mr. Luka worked for one of Lockerbie & Hole’s subcontractors, he presumably would have five employers: the subcontractor, Lockerbie & Hole, Marsulex, Kellogg Brown and Root, and Syncrude. If he was further down the contractual chain, he might have even more employers. This is not a result the Legislature should be taken to have intended by the use of the word “employer”.

This is an important site access drug testing decision. Furthermore, the Court’s reasoning on the meaning of “employer”  and the parameters for co-employment under human rights legislation are of general importance with implications outside of Alberta.

Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3 (CanLII).