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Social media involved in more labour litigation

‘Difficult balancing act’ for employers
|Written By Gabrielle Giroday

Labour and employment lawyers say the increasing use of social media and mobile devices is factoring into litigation on an increasing basis.

Adrian Ishak says while social media is not involved in all of his cases, it has played an increasingly prominent role in his practice.

The trend is backed up by a survey of 150 Canadian lawyers conducted recently by Robert Half Legal where one third, or 37 per cent of respondents indicated they’d observed an increase in lawsuits due to pictures or information contained in social media, or on mobile devices.

“It’s something that’s coming up a lot more with my clients,” says Adrian Ishak, partner at Rubin Thomlinson LLP.

Ishak says while social media is not involved in all of his cases, it has played an increasingly prominent role in the work he is seeing. Discussions about social media picked up about seven to eight years ago, and in the last two years, he says it’s intensified.

“In the last couple of years, absolutely, a lot of the issues that my clients are having are stemming from social media, the conduct of social media of their employees,” he says.

“In the same way that social media is impacting on all the other aspects of our lives, it’s definitely impacting the workplace.”

The survey developed by Robert Half Legal was done by an independent research firm. In the survey, lawyers were asked if they had seen an increase or decrease in litigation or e-discovery, linked to images or information on mobile devices or on social media.

About 11 per cent said they had seen a significant increase, while 26 per cent said they had seen a slight increase.

Another 56 per cent said they hadn’t seen an increase or decrease, and one per cent said a slight decrease. Seven per cent indicated they did not know the answer.

“Where historically I had seen issues on social media was around harassment, where co-workers bully one another on social media, and so it’s workplace-related that spills over into their off-time, so to speak,” Ishak says.

If people share issues on social media related to their work, or their workplace colleagues, it can have spin-over effects.

“Conduct that in the normal course would have been considered off-duty, is now starting to impact the workplace, where the employer now has either obligations or has interest in following up on these matters, that are taking place [during] off-hours,” he says. “It’s this very difficult balancing act between what is truly off-duty conduct and what is conduct that is an extension of the workplace. And so employers are finding themselves increasingly at a loss on how to deal with these issues.”

It may mean disciplinary action or other types of follow-up, says Ishak.

Samantha Lucifora, an associate at Monkhouse Law, says she rarely encounters a discovery where social media isn’t included in some way. Lucifora estimated she’s dealt with about 12 people who have lost their jobs over social media.

“Obviously, in employment law, social media can be relevant to many aspects of the litigation, depending on the facts. It could be why someone was terminated, it could be their functioning since termination, it could be their mitigation of damages, it could even be post-settlement, whether there’s confidentiality breaches,” says Lucifora.

“Obviously, I don’t think there’s a one size fits all aspect of discoverability of social media, but I think that I very rarely encounter a discovery where there isn’t some aspect of the discovery that’s asking questions about social media, or asking for undertakings related to social media.”

Lucifora says the use of social media has expanded the definition of the workplace.

“Your behaviour is relevant to your boss in the workplace but when you use social media from your own home, but you’re commenting on things or people in the workplace, I think there’s a strong argument there that that is relevant to your behaviour in the workplace,” she says.


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