If employers needed proof that blogging has become a workplace issue, they had it long ago: in 2002, the term "dooced" was coined for "being fired for one's website". A blogger was fired for writing about her job and colleagues on her blog, Dooce.com.
Ever since then, a tension has existed between the "freedom" of employees to do or say what they want on their own time – including online ‐ and the employer's right to require loyalty of all employees and to protect its business and reputation from damaging online comments. Not-for-profit and charitable organizations have a particular interest in protecting their online reputation, given the potential loss of donors and supporters due to negative publicity.
The legal issues facing employers, when their employees post online comments about their job, coworkers or the employer, include confidentiality of the employer's information; loss of reputation of the employer or other employees; workplace harassment or discrimination flowing from online comments; criminal charges (such as hate speech); and "stealing time" by blogging or updating a Facebook page at work.
Case Examples: Firing for Online Postings
Employees often argue that their online postings are "private" and should never be used by employers to fire them. Adjudicators have not accepted that argument: if the blog, Facebook or Twitter posting harms the employer's business and is not "private", employers may access the posting and, in appropriate cases, fire the employee.
In 2007, an Ontario labour arbitrator upheld the firing of a municipal retirement home employee for making disparaging comments on her blog about her employer and the residents of the home. She had posted photographs of herself with the residents; commented that a coworker was lazy; and called the retirement home a "hole". The arbitrator decided that the blog comments were "insolent, disrespectful, and contemptuous of management and an attempt to undermine the reputation of management at the Home..." The employee had been careless in ignoring the fact that her "permissions" on her blog were set to public access rather than private. As such, the employer was justified in relying on the contents of the blog in order to dismiss the employee.
More recently, the British Columbia Labour Relations Board upheld the dismissal of two employees of a car dealership for Facebook postings referring to their supervisor as "a complete Jack-Ass" and suggesting that their employer was staffed by "crooks" that were out to "hose" customers. Because the two employees had 100 and 377 Facebook friends respectively, including present and former coworkers, the labour relations board ruled that they did not have a serious expectation of privacy over their Facebook postings. Instead, the comments were akin to comments made on the shop floor and thus were insubordinate. The employer was entitled to act on the postings.
Faced with the risk of inappropriate and damaging online comments by employees, and the right to protect its online reputation, what should an employer do? An outright ban on blogging and Facebook use by employees would appear to be reactionary, overreaching and unreasonable - not to mention impossible to enforce - and would make the employer appear to be "behind the times". Further, it is now well - accepted that the Internet and social media are valuable marketing and networking tools for charities and not-for-profit organizations. Squelching their use could result in missed opportunities for the organization.
As a result, the employer's options would appear to be (1) a full or partial ban of blogging and Facebook use at work and/or (2) restrictions on what employees can say on their blog or Facebook page. Given the prevalence of Facebook use, and the potential benefits to organizations from social networking, a full ban of Facebook use at work may not be in the employer's interest. Employers have every right, though, to require that Facebook or Internet use that is unrelated to the employee's work be done on his or her own time, such as breaks or after work. Even if an employer were to impose a software block to Facebook use on the work computers, many employees would access Facebook on a handheld device such as a Blackberry of iPhone. As such, a full ban is likely impossible to enforce.
It is, however, strongly advisable that employers put strict restrictions on employee's online postings, whether done during or after working hours. Those restrictions may include:
- No sharing of confidential information about the employer, its employees or clients;
- No posting of disparaging comments about the employer, fellow employees or clients;
- No engaging in workplace gossip online;
- No harassing or discriminatory comments;
- No use of the employer's logo or anything that would cause confusion as to whether the site is an "official" site of the organization; and
- No statements that are inconsistent with the beliefs or core values of the organization. This rule may be particularly important for faith-based charities with a shared set of community values.
All of these rules should be contained in a social networking policy that also states that engaging in any of this behaviour may be grounds for discipline or dismissal.
Advice for Charities and Not-for-Profit Organizations
The best advice is to decide your organization's approach to employee blogging and social networking, and tell employees what it is. And remind employees regularly. Social networking and Internet use have become so common and natural for many people, that regular reminders of the workplace rules are needed.
Keep your policy short though. In this age of 140-character Twitter posts, many people will not read a long policy. So here, somewhat cheekily, is a social media policy in 140 characters:
Blog, poke and Tweet at work but on your own time. Don't gossip, defame, harass. Don't talk about clients. Nothing confidential or illegal. Remember our values.
Now, back to work.
About Fraser Milner Casgrain LLP (FMC)
FMC is one of Canada's leading business and litigation law firms with more than 500 lawyers in six full-service offices located in the country's key business centres. We focus on providing outstanding service and value to our clients, and we strive to excel as a workplace of choice for our people. Regardless of where you choose to do business in Canada, our strong team of professionals possess knowledge and expertise on regional, national and cross-border matters. FMC's well-earned reputation for consistently delivering the highest quality legal services and counsel to our clients is complemented by an ongoing commitment to diversity and inclusion to broaden our insight and perspective on our clients' needs. Visit: www.fmc-law.com
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.