I am part of a committee that is putting together a two day special lecture series in April, 2012 for the Law Society of Upper Canada entitled AEmployment Law and the New Workplace in the Social Media Age@. When I first was recruited to the committee I thought how would we possibly find enough content to fill two days. Since that time I am beginning to wonder if we will have enough time to cover all the many topics that we have been considering. As an employment lawyer I am daily dealing with novel fact scenarios which raise unique issues in terms of legal rights and responsibilities of workplace parties and the use/misuse of social media.
How does an employer manage professional and personal use of social media by employees? Social networking sites such as Facebook, LinkedIn, MySpace, Twitter, blogging and other forms of electronic communication are throughout our workplaces. While employers can benefit from the use these tools, inappropriate use of social media can create liability for an employer and blemish its goodwill and reputation.
The treatment of and response to social media in the workplace touches on a wide range of legal disciplines including but not limited to property and privacy laws, defamation, harassment/discrimination and criminal law.
A real concern for employers is how far can they go in monitoring employee use of social media both in and outside of the workplace and what can be done to prevent or respond to employee misuse or abuse of social media.
A number of decisions by arbitrators, tribunal members and courts have provided guidance in the area and have consistently recognized that social media such as blogging on the Internet and Facebook are not private communications but meant for public consumption and employees need to be careful about their communications.
In one case a union alleged that an employer had wrongfully terminated two of its employees. The employees had made a number of posts on their Facebook profiles which included rants about their workplace frustrations and what was found by the provincial labour relations board to be Aoffensive, insulting and disrespectful comments@about their supervisors. Some of the comments included aggressive and threatening statements referring to a supervisor as Aa complete jack ass@, a Ahalf- a- tard@and Athe Fixed Ops/Head Prick@. Allegations were also made that a supervisor was engaged in a sexual relationship with another male manager and encouraging people to not spend money at the employer=s business because it Aripped off@customers. The board found the conduct amounted to serious insubordination, damaging to the employer=s reputation and supported the terminations for cause. The board rejected the union=s argument that these were private communications as there could be no serious expectation of privacy given that the Facebook posts were visible to everyone on the two employees=Facebook friends lists (over 400 people between the two individuals).
In another case a municipality terminated the employment of a personal caregiver at a retirement home. The dismissal occurred after the employer found that the employee had created a blog accessible to anyone with internet access where she published resident information and pictures without resident consent and had made inappropriate comments about residents entrusted to her care. The arbitrator hearing the grievance filed by the employee described the blog as Aill written… blunt and laced with coarse language, and bitchy in style with an attempt at humour@. The blog criticized management decisions, coworkers and contained disparaging remarks about the business generally and discussions of residents and their medical conditions. The union argued that the comments on the blog were similar to what employees would talk about on their breaks. The arbitrator disagreed and found that the blog was available to the public and as such the employee had not only breached the confidentiality agreement she had signed but also ignored the high standards in the health care sector for confidentiality of personal information. The arbitrator also found that she had made insubordinate remarks about management. Her discharge was upheld.
In another decision a pilot was discharged for posting derogatory comments regarding the company=s owners on Facebook. The arbitrator noted that where the internet is used to display commentary or opinion the individual must be assumed to have known that there is potential for virtually world wide access to the statements. The arbitrator found that the comments had Aa real and material connection to the airline and gave reason to the company to have both substantial and warranted concerns about potential reputational harm.@ While the arbitrator upheld the discharge the employee was still awarded 3 months compensation. That may not have been the case if the company had a well articulated social media policy
While many employers have information technology policies (to govern the use and management of information technology equipment, software and services) and/or codes of conduct for employees in this digital media age it is important for an employer to consider creating a social media policy. In addition to a written policy, equally important is educating employees about the policy and what is acceptable and unacceptable social media behaviour. The following should be part of any social media policy:
- define/identify what social media is
- make employees aware that social media communication may become public and that anonymity on the internet is unlikely
- emphasize that computer use by the employee may be monitored by the employer and the employee should not have any expectation of privacy
- the policy should state that it is not restricted to use from work computers or devices and applies to use of social networking sites on employee time
- make employees aware of what is prohibited including:
– making or posting racially or sexually offensive, defamatory, disparaging, harassing or indecent remarks or pictures about anyone including the company, its employees, vendors and customers,
– disclosing confidential or proprietary information of the company, its clients, employees
– engaging in workplace gossip
– a prohibition on the use of electronic networks for the purposes of soliciting or otherwise advancing any personal business or activity of an employee
The policy and its enforcement should be clear to all employees and the consequences for breaching it including dismissal for cause if it is not followed. The policy should also be simple and accessible. Given the pervasive nature of social media in and outside of the workplace it is recommended that companies take this subject on in a real way andprovide training with the aim of establishing a culture and etiquette that is understood and followed company wide.