With websites such as Facebook, Twitter, Linkedln, LiveJournal, MySpace, Pinboard, Digg, Youtube, etc, our daily montage of comments, observations, celebrations, drunken debauchery, frustrations, relationship woes and what we ate for breakfast are now more public than ever before. But how does this online instant publication translate into the world of workplace law?
Take one frustrated and social media savvy (“addicted”) employee with hundreds of online “friends” who in turn each have hundreds of “friends” and the potential danger to an employer’s business becomes staggering, very real and potentially limitless. Given this potential, an employer is entitled to discipline an employee for inappropriate comments made from social media platforms about its business or employees, or where an employee discloses unfavourable information about a claimed absence from the workplace.
Adjudicators have held that employees limit their privacy rights by choosing to post information to social media pages that are open to the public or otherwise accessible to a large group of people. An employee is not able to claim that privacy rights attach to information that they choose to then share with such a large group, which in some cases can amount to hundreds of “friends”.
It is now well established in the context of labour relations that the information acquired from Facebook or other social media postings can be used against an employee in imposing discipline or discharge, depending upon the severity of the postings.
That is exactly what happened in a case before the British Columbia Labour Relations Board in Re Lougheed Importers Ltd., BCLRB No. B190/2010. Two employees posted numerous derogatory, disrespectful and damaging remarks about the employer and other employees on Facebook. The status updates and “wall” posts included angry, sexually inappropriate and potentially violent remarks about management and other employees. The allegations included a suggestion that two supervisors were performing sexual acts in the bathroom at work, referred to stabbing someone and called the boss a “complete jack-ass”. The frustrated employees even went so far as to urge people not the use the employer’s services. One of the employees posted they “are crooks out to hose you and the shop ripped off a bunch of people I know.” The employer, not surprisingly, fired the employees. Disappointingly, the Union objected to the employer taking such a step, and filed a complaint with the B.C. Labour Relations Board.
The Labour Board found that the employees did not have a serious expectation of privacy in the material they posted on Facebook when the posts were read by their Facebook friends. The Board also found that the comments were “offensive, insulting and disrespectful” to the employer and to management and damaging to the employer’s business. Ultimately the Board decided that the employees were properly fired for cause.
Another case where an employee was disciplined for posting inappropriate content to his Facebook account is that of Credit Valley Hospital v. Canadian Union of Public Employees, Local 3252 (Brathwaite Grievance) (2012), 214 L.A.C. (4th) 227. In this case, a patient of the Employer jumped to his death from one of the buildings on the Employer’s property and the employee was assigned to help clean up the scene. During his time there, the employee took two pictures of the scene with his cell phone. He then posted them on his Facebook page, with a caption under each picture. One day later, he deleted the posted pictures. The Employer became aware of the posted pictures and initiated an investigation of the alleged misconduct. The employee was subsequently terminated for breaching the Employer’s code of conduct and for breaching the confidentiality of patient, employee and corporate information. The employee grieved his termination.
The arbitrator decided to uphold the termination of the grievor, indicating that he had publicized and disseminated confidential patient information on the Internet about a most tragic event. The arbitrator found that the grievor’s actions could not be characterized as being a momentary aberration, or being spur of the moment. On the contrary, his actions of posting the pictures to his Facebook page were premeditated and selfish, as well as a serious breach of the Employer’s code of conduct.
The British Columbia Supreme Court recently became the first Canadian court to release a reported decision concerning the dismissal of a non-unionized employee for social media postings. In Kim v International Triathlon Union, 2014 BCSC 2151, the employer dismissed a senior managerial employee for misconduct arising from inappropriate and unprofessional use of social media. The employee’s postings included comments which compared her communications with her boss to physical and psychological abuse from her mother, as well as others which described excessive alcohol consumption at a workplace party. The Court rejected the Employer’s argument that it had cause to end the employment relationship, finding the employer had not provided the employee a clear and express warning that her social media conduct was unacceptable.
Given the potential negative impact one employee can have on an employer’s business employers should consider the following protective measures:
- Employee education about the appropriate and inappropriate uses of social networking media in relation to the workplace;
- Implementing social networking policies that make it clear that online comments can affect employment; and,
- Consult with legal counsel to determine if comments made online warrant a disciplinary reaction and if so, how severe.
Your average person likely believes that he or she can say whatever comes to mind on Facebook because it is “private” and “between friends”. As the cases discussed above demonstrate, it does not matter if such postings are made outside of working hours or with a non-work computer or device. Such activity becomes a workplace issue if there is a real connection between the work place and the activity in question.
Strictly speaking, many other policies that employers may already have in place (eg. confidentiality, privacy, harassment etc) likely capture unacceptable social networking commentary about the employer’s business or its staff. But how likely is it that your average employee will look at your confidentiality policy and connect the dots from their duty of loyalty, fidelity and confidentiality back to their latest wall post, status update or tweet? The answer is: not likely. Therefore, with the rise of social networking already well upon us employers may wish to send a clear and unambiguous message to employees: Don’t talk about work online; if you do, your job may be on the line.
Excerpts from an article by Ryan McFarlane. Originally titled “Facebook: The New Office Water Cooler”. Reprinted with permission from HRVoice.org, BC Human Resources Management Association’s online industry information centre. Ryan McFarlane is a lawyer with Ukrainetz Law (ulclaw.ca) in Vernon, B.C. This article is meant for reference only and should not be construed as legal advice.
Additional information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP (March 2013). The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.