Canada: Facebook and Workplace Privacy: New Developments and Implications for Businesses

Last Updated: January 10 2011
Article by Roland Hung

Given the ubiquitous nature of social media and the ease with which information can be created and shared, social networking sites, like Facebook and Twitter, are one of the fastest growing areas of concerns for employers. These sites provide employees with a greater ability to tarnish the reputation of employers and to expose employers to additional risks, whether the employees intend to or not.

In the recent precedent-setting case, Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, the British Columbia Labour Relations Board ("Board") upheld the firing of two employees by a car dealership over comments they posted on Facebook about their employer.1 The Board concluded that the employees had no reasonable expectation of privacy in comments made on social networking sites and when those comments are damaging to the employer's business or insubordinate in nature, the employer may have just cause for termination. This is among the first cases dealing with the termination and Facebook to be heard in Canada.

What Happened?

The employees, J.T. and A.P, worked in the detailing shop at West Coast Mazda in Pitt Meadows, BC, which had recently been unionized.

During the drive to unionize, J.T. and A.P posted various insulting, aggressive and offensive comments on their Facebook pages. The comments became angrier, particularly once the union was successfully certified, and included homophobic slurs and threats. After monitoring the comments and issuing warnings to the two employees, West Coast Mazda decided to terminate the authors' employment for just cause.

Consequently, the Union filed a complaint with the Board, arguing the workers were fired for anti-union reasons and were targeted because of their union organizing activities.

The Decision

In arriving at its decision, the Board reasoned:

The comments made by the Complainants on Facebook were damaging comments about the Employer's business, such as "don't spend your money at West Coast Mazda as they are crooks out to hose you and the shop ripped off a bunch of people I know". These Facebook comments were made to either almost 100 or 377 people including employees. I find, based on those facts and the analysis in Leduc v. Roman that the Complainants could not have a serious expectation of privacy when publishing comments on their Facebook websites and therefore the comments are damaging to the Employer's business.

The comments also included very offensive, insulting and disrespectful comments about supervisors or managers. As the Facebook comments were also made to other employees and former employees that were friends with J.T. and A.P. on Facebook, I accept the Employer's assertion that these comments are akin to comments made on the shop floor. The comments about the supervisors amount to insubordination within the meaning of [British Columbia Forest Products] as they are "used as a verbal weapon to degrade a Supervisor in front of others". J.T. also made comments that clearly identified and referenced discipline he had received at work. He also identified the manager and called him derogatory and insulting names. I therefore find the Facebook postings are not similar conduct to the inappropriate comments made on the shop floor on a regular basis (at paras. 97–8).

The Board dismissed the Union's complaint and supported the terminations, finding the Facebook comments constituted just cause for dismissal. The Board stated that the two employees, together, had over 400 Facebook friends, including current and former employees of West Coast Mazda, and had no reasonable expectation of privacy in the comments they made.  Further, despite the fact the comments were made offsite during non-work hours, the Board found they contributed to a hostile work environment and constituted insubordination.

What does this mean for businesses?

The Board in this case follows a developing trend in Canada where arbitrators2 and courts3 have suggested that employees have no reasonable expectation of privacy in comments made on social networking sites.

However, employers should still be cautious when deciding to monitor these sites. Aside from concerns about surreptitiously monitoring social networking sites without employees' knowledge or consent, employers may expose themselves to risk by acquiring certain information, such as learning of an employee's previously unknown disability.

Employers should be proactive and develop and implement clear social media policies. These policies should be enforced consistently. Here are some guidelines to consider when creating and implementing a social media policy:

  1. Explain what social media is and what the policy covers: The policy should make clear to employees what types of activities it applies to. The definition of social media should be broad; while naming specific sites as examples can be helpful, the definition should not be limited to those sites as social media are constantly changing.
  2. Remind employees about the nature of social media: The policy should remind employees that any communication made through social media is or can become public, that the identity of anonymous contributors can often be revealed, and that postings can be difficult to rescind or delete.
  3. Include non-work usages of social media: The policy should make clear that it applies both to at-work usage, if permitted, and off-duty usage of social media. An employee's confidentiality obligations to its employer, for example, do not end when the employee leaves work at the end of the day.
  4. Remind employees that what they publish reflects both on themselves and the employer: The policy should generally remind employees to exercise good judgment and prohibit the publishing of any comments that may negatively affect the employer.
  5. Prohibit the violation of laws: The policy should state that employees are legally responsible for their communication using social media and, as a result, should not violate any laws.
  6. Prohibit the violation of employer policies: The policy should reiterate that all other employer policies continue to apply to communications using social media. In particular, confidentiality policies and agreements apply to limit or prohibit the disclosure of certain information about the employer. The policy should also remind employees that seemingly innocuous or anonymized information may breach confidentiality. In addition, codes of conduct and conflict of interest policies, among others, will continue to apply to limit improper behaviour.
  7. Prohibit speaking on behalf of the employer: The policy should clearly state that, unless authorized to do so, employees should not speak on behalf of the employer.
  8. Advise that revisions may be requested: The policy should notify employees that, in appropriate circumstances, the employer may request revisions to, or the removal of, certain social media communications.
  9. Consider including specific rules regarding the use of social media in a business capacity: If the employer is considering appointing an employee or various employees to use social media on behalf of the employer, it should set out specific rules regarding this role. These rules may vary based on the employer's intended use of social media; however, any industry-specific rules, such as restrictions on disclosure or advertising, should be referenced.
  10. Advise that the employer will monitor employee usage of social media while at work, if applicable: If the employer will monitor employees' use of social media, which it may already do through monitoring employee Internet usage, the employer should disclose this to its employees and advise that they have no reasonable expectation of privacy with respect to their use of the Internet through employer systems.
  11. Advise of the consequences of a breach: The policy should provide that discipline up to and including termination of employment may result if an employee breaches this policy. A policy is only as good as its enforcement so the employer must be prepared to follow through with disciplinary action in order to ensure that its employees comply with this policy.

Footnotes

1. Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518, 2010 CanLII 62482 (BC L.R.B.).

2. Naylor Publications Co. (Canada) v. Media Union of Manitoba, Local 191 (Re), [2003] M.G.A.D. No. 21 (QL).

3. Leduc v. Roman, [2009] O.J. No. 681; Schuster v. Royal & Sun Alliance Insurance Co. of Canada, [2009] O.J. No. 4518; and Murphy v. Perger, [2007] O.J. No. 5511 (S.C.J.).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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