The use of social media in the workplace has exploded in recent
years and employers are struggling to keep up. With easier
accessibility to the internet, the popularity of smart phones and
the introduction of new social media outlets, it is not
surprising.
Conduct on social networking sites has recently been the subject of
litigation in Ontario, British Columbia and Alberta. In
Lougheed Imports Ltd., two employees employed by West
Coast Mazda, an automotive detailing and accessory shop in Pitt
Meadows, B.C., were terminated as a result of a series of Facebook
postings described as "offensive, insulting and
disrespectful." Both employees were strong supporters of a
union drive, and both were Facebook friends with a manager at the
company. The manager was disturbed to find that the employees'
Facebook postings targeted management, the business and the
products sold by the business.
The employer conducted an investigation and met with each employee.
In the meetings, the employees were provided copies of their
Facebook postings. Both employees denied making the postings.
Following the meetings, both employees were terminated. The union
filed unfair labour practice complaints with the British Columbia
Labour Relations Board, alleging the employer did not have just
cause for the terminations. The Board dismissed the complaints,
finding that "[t]he fact that the complainants had no previous
discipline and the employer knew they were key supporters of the
union does not outweigh the fact that the employer had never
encountered similar conduct, and the work offence was serious
insubordination and conduct damaging to the employer's
reputation." The Vice-Chair relied on the Ontario decision in
Leduc v. Roman, and determined that the employees could not have an
expectation of privacy as Facebook postings were "akin to
comments made on the shop floor."
The same issues were also dealt with in Alberta v. Alberta
Union of Provincial Employees, where an administrative
employee in the Alberta Pubic Service was dismissed after her
employer had become aware of the contents of her personal blog. The
blog contained unflattering comments about a number of her
co-workers and management. The union, in challenging the dismissal,
argued that the discipline was excessive and that the employment
relationship could be restored. The arbitration board ruled that
the conduct of the grievor was serious enough to undermine the
employment relationship beyond repair, justifying discharge. The
grievor had been unapologetic and defiant about her blog,
demonstrating little awareness of the hurt that she had caused. She
also defended her freedom of expression, refused to remove the
blogs, and threatened more postings after she was told that she had
been terminated.
The union applied for judicial review of the arbitration
board's decision and the Alberta Court of Queen's Bench
quashed the award on the ground that the arbitration board erred in
finding that the employer had complied with the disciplinary
process set out in the collective agreement. The Court did not,
however, address whether the dismissal was just in the
circumstances. The judicial review and a subsequent appeal to the
Alberta Court of Appeal were both dismissed. The reasoning in the
initial arbitration appears to continue to be good law in Canada as
it has been followed in later cases.
In a different B.C. case, EV Logistics, the employee had
been discharged because of the contents of his blog which contained
violent fantasies and racist comments. The blog also identified the
company as the blogger's employer. The employer argued that
discharge was justified because of the offensive, racist and
hateful entries in the blog and because of the harm to the
employer's legitimate business interests and its reputation.
The union argued that the postings on the blog occurred entirely
off-duty and that there was no connection between the business
interests of the employer and the employee's conduct. The
arbitrator held that there was a connection between the blogging
and the business interests of the company; however, there were
sufficient mitigating factors to justify a reduction in the
disciplinary penalty of discharge and the grievor was reinstated
without compensation.
In Chatham-Kent, an Ontario employee was dismissed for
breach of the confidentiality agreement, insubordination and
conduct unbefitting a personal care giver because of the contents
of her blog. The employee posted comments about her employer and
the conditions in the retirement home as well as personal
information about the residents in the retirement home without
their consent. The union argued that the discipline was excessive.
In dismissing the grievance, the arbitrator held that the blog
comments were insolent, disrespectful, and contemptuous of
management and were an attempt to undermine management's
reputation and authority. The grievor also breached the
employer's confidentiality agreement by disclosing personal
information of residents on a website she had created which was
accessible by the general public.
The emerging framework from recent cases was confirmed by the
decision in Wasaya Airways LP. An airline pilot with a
company owned by a number of First Nations was discharged after
posting "extremely serious, offensive and derogatory comments
regarding the Company's owners and customers" (i.e.
aboriginal people) on Facebook. The pilots union argued that the
discipline was excessive. The arbitrator cited Alberta and
Chatham-Kent for the proposition that "where the
internet is used to display commentary or opinion, the individual
doing so must be assumed to have known that there is potential for
virtually world-wide access to those statements." The
arbitrator concluded that while the grievor's misconduct was
deserving of some penalty, the postings were intended to be
humorous and there were several mitigating factors. The arbitrator
further noted that the grievor would be unable to work effectively
as a pilot with either the owners of the airline or its customers
given the nature of the posting and ordered that a four-month
suspension with compensation be substituted for the discharge but
on condition that the grievor resign.
Various workplace issues arising from the recent riot in downtown
Vancouver following Game 7 of the Stanley Cup final are yet another
testament to the power of social media. A number of people were
terminated from their employment after social networking websites
revealed pictures of their participation in the riot or their
pro-rioting declarations were discovered. According to CBC
News, more than one million photos and 1,000 hours of video
were submitted as evidence following the riot. These photos and
videos have spread across social media websites in an effort to
label and shame those responsible. Facebook groups such as
"identify the rioters" have proven to be very helpful in
aiding the police. Furthermore, there is now a permanent and
publicly-available record which may impact both continued
employment and turn up on future online background checks.
The various Canadian decisions and recent events demonstrate the
need for both employees and employers to understand how social
networking fits into traditional employment and labour concepts.
Social media policies need to be integrated into companies'
existing policies on protection of privacy and confidential
information, workplace safety, conduct in the workplace and
discipline. When creating a social media policy, there is no
one-size-fits-all plan. Regardless of the type of policy
implemented, it is essential that the policy be well understood by
employers and employees alike. We offer the following advice on how
to create an efficient and effective social media policy:
- When drafting a social media policy, it is important to involve all departments. Information technology, human resources, public relations/marketing and corporate managers and executives should all work together to create a policy that works for everyone.
- Social media policies should be broad enough to cover social media technology that will be introduced in the future. Furthermore, the policy should not only cover the material on the company blog, or company Facebook or Twitter account, but should cover the appropriate use of one's personal blog, Facebook page, or Twitter account. It must also be clear that the policy is not restricted to use from work computers and applies to use of social media on employee time.
- Employers should implement a positive social media policy. Recognizing the pervasiveness of new technologies, allowing access to social media in moderation could be the answer so long as it does not affect productivity and the company is protected.
- Employees should be kept informed about the legal and security risks involved in social networking and what they can do to protect themselves and the company. Emphasize the need to use caution and good judgment as comments posted on social networking sites can spread despite the original posting being removed. It is important to encourage employees, if mentioning the company name, to use a disclaimer that the opinions expressed are not those of the company.
- The organization should define what is and is not considered "acceptable use" both on the company's network and outside of it. It should be clear that company systems may not be used for illegal activity such as copyright/plagiarism and downloading pirated software.
- The policy and its enforcement should be clear to all employees. It is important to clarify what disciplinary action will be taken, up to and including termination, if policies are not followed.
- A social media policy should be written and it is a good idea to have employees sign off on it or track acceptance or receipt to ensure they have read its contents.
- The policy should be simple and accessible. Employees will not be inclined to read through an overwhelming manual. Circulating the policy regularly and having the policy readily available both electronically and in hard copy are also encouraged.
The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.
© Copyright 2011 McMillan LLP