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 concern for employers. These sites provide employees with a greater ability to tarnish the reputation of employers and to expose employers to additional risks, whether intended 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 (the "Board") upheld the termination 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. Further, when those comments are damaging to the employer's business or insubordinate in nature, the employer may have just cause for termination. This decision is one of the first in Canada to deal with termination on the basis of postings to a social-networking site.
What Happened?
The employees, J.T. and A.P, worked in a recently unionized detailing shop at West Coast Mazda in Pitt Meadows, British Columbia.
During the campaign to unionize, J.T. and A.P posted comments on their Facebook pages that were alleged to be insulting, aggressive and offensive. It was also alleged that the comments became increasingly vitriolic after the union was successfully certified. After monitoring the comments and issuing warnings to the two employees, West Coast Mazda terminated their employment.
The union filed a complaint with the Board, arguing the workers were fired in retaliation for their union organizing activities.
The Decision
In arriving at its decision, the Board reasoned that the employees could not have had a serious expectation of privacy with respect to their Facebook postings. 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 if they decide to monitor these sites. Aside from privacy concerns about surreptitiously monitoring social networking sites without employees' knowledge or consent, employers may expose themselves to risk if the collecting of the information is subject to applicable privacy legislation in their jurisdiction.
Employers should be proactive and develop and implement clear social media policies. These policies should be enforced consistently. The following guidelines should be considered 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 the types of activities to which the policy applies. 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 the social media realm continues to grow and evolve.
(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, the identity of anonymous contributors can be revealed, and statements made online can be difficult to retract or delete.
(3) Include non-work usage of social media: The policy should make clear that it applies both to at-work usage, if permitted, and off-duty use of social media. An employee's confidentiality obligations to its employer, for example, do not end when the employee leaves at the end of the day.
(4) Remind employees that what they publish reflects on both 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, including responsibility for defamation and hate speech.
(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 may 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 guidelines or legislation including 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 may be conducted through monitoring employee Internet usage, the employer should notify its employees.
(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. The employer must be prepared to follow through with disciplinary action where justified.
Footnotes
1.Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518, 2010 CanLII 62482 (B.C.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.
