July 31, 2013 - You can't "ignore" the fact that
Facebook use in Canada is on the rise. According to a recent
survey by Media Technology Monitor, 63% of Internet users and 93%
of social media users have a Facebook page. Nearly seven out
of every 10 Internet users identify themselves as regular users of
social media generally.
Alongside this increase in social media use is an increase in
social media related employment litigation. Perez-Moreno v.
Kulczycki,  O.H.R.T.D. No. 1080 is one example. In that
case, a golf resort manager filed a human rights complaint about a
co-worker's Facebook postings. The posts referred to the
co-worker being written up at work for calling the manager "a
dirty Mexican" and stating to other employees, "now that
Mexican is not going to give me anything." The Tribunal agreed
that the co-worker discriminated against him in employment on the
grounds of race, ancestry, place of origin, citizenship, and ethnic
origin, and that the Facebook postings constituted harassment in
employment contrary to the Human Rights Code.
The Tribunal ordered the co-worker to complete human rights
training as the remedy. Interestingly, the manager neither named
the employer as a respondent to the complaint nor sought monetary
compensation as a remedy. Many employers facing these kinds of
complaints are not so lucky.
Many employees still think their social media postings are
private and personal communications totally unrelated to their
employment. Employees owe duties to their employer, including
duties of loyalty, fidelity, and confidentiality. These duties can
extend outside of the workplace and into social media.
How then should employers deal with employees who haphazardly
post their thoughts about coworkers or about the company on the
Internet? One effective way is to ensure that everyone in the
workplace is, quite literally, brought onto the same page with
respect to social media expectations through a social media
This case is a good opportunity to review your social media
policies and refresh your employees' training in this
area. In doing so, you may want to consider some of the
following key elements found in effective policies:
Remind employees that employment duties and company
policies apply to their activity in cyberspace.
Remind employees that social media is not a secure or
private form of communication.
Set boundaries on the use of social media during
business hours that fit your workplace.
Address representations: are the employees representing
the company when online?
Advise employees that their social media activities may
be monitored and reviewed if appropriate.
Notify employees that they are responsible for their
activities and they may be held accountable. Warn them of the
Obtain a signed employee acknowledgement that they
understand and are expected to adhere to the policy.
Employers are ultimately responsible for ensuring that the
workplace is free from harassment and discriminatory conduct. This
responsibility can extend to off-duty conduct that has a negative
effect on the workplace. Being proactive through education will
help employers manage these risks.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).