Network - Summer 2011 - (Page 31)

Ask Field Law Got HR legal questions? We’ve got the answers! In our new column, Ask Field Law, the law firm will answer readers’ legal questions that are of general interest to HRIA members. Ask Field Law will appear regularly. Send us your questions: If you have a legal question you would like addressed in a future issue please send it to Please note that you may be contacted by a Field Law lawyer. Most provinces have already implemented some form of “distracted driving” legislation. Alberta is in the process of amending its Traffic Safety Act to prohibit hand-held cellphone use, reading, writing, and personal grooming while driving. Q A Can an employer collect information about former employees from social media sites for use in the posttermination phase of the relationship? The answer to this question depends largely upon which legislative regime applies in the circumstances. Private-sector employers in Alberta – who are governed by the Personal Information Protection Act – now have the benefit of recent amendments to that Act, which give them the power to (among other things) collect personal employee information without consent for the purpose of managing a post-employment relationship. Although no reported cases have yet tested the scope of this power in relation to social media sites like Facebook, it likely extends to the collection of information from such sites in appropriate circumstances. Importantly, the power is restrained by Section 11 of the Act, which requires that collection of information must be for a reasonable purpose and must be limited to the information required to meet that purpose. Reasonable purposes would likely include gathering information in the context of a legitimate investigation involving a former employee. For Alberta’s public-sector employers – who are governed by the Freedom of Information and Protection of Privacy Act – the situation is less clear. Under Section 33 of FOIPP, a public body cannot collect personal information unless it has express legislative authority to do so, the collection is for the purposes of law enforcement, or the information relates to and is necessary for “an operating program or activity of the public body”. Alberta’s Privacy Commissioner has ruled that the management of employees is an “operating program or activity” of a public body for the purposes of Section 33; however, it is not clear that the management of former employees would be similarly regarded. Given that in its next section (Section 34), FOIPP expressly contemplates collection of personal information by public bodies for the purposes of managing current personnel, but makes no mention of former personnel, it is likely that public-sector employers lack the legislative authority to monitor social media sites for the purposes of mining information about former employees. Such information (assuming its relevance) would likely only be available to public-sector employers involved in litigation with former employees, pursuant to the usual disclosure obligations of the parties. Q A Can an employer be held liable if an employee gets into an accident while engaged in work-related texting/tweeting/ cellphone use while driving? The pervasive nature of social media tools such as smartphones and tablets is undeniable: they have the potential to penetrate most aspects of contemporary life, including time spent behind NETWORK O Summer 2011 O 31

Table of Contents for the Digital Edition of Network - Summer 2011

Network - Summer 2011
HRIA Chair’s Message
Honouring Alberta’s Best
HRIA Conference Wrap-Up
Good Dismissals and Investigations
The Future of HR in Canada
How to Pick a Good Fight
Why Introverts Can Make the Best Leaders
Social Media in 2011: Seven Choices You Need to Make
Employee Tweets, Posts and Company Social Media
Ask Field Law
Index of Advertisers

Network - Summer 2011