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
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