JULY 2011
LABOUR & EMPLOYMENT LEGAL ALERT
UNSOCIAL USE OF SOCIAL MEDIA AND
ITS RISKS TO YOUR BUSINESS
The recent terminations of individuals photographed participating in the Stanley Cup
riots in Vancouver, and the online attempts to “shame” these individuals by identifying
them to their employers, have attracted international attention and illustrated the
complex legal issues involved in social media and off-duty conduct.
From risqué postings on Facebook to offensive
tweets disparaging an employer’s customers,
some employees have now found themselves
out of work because of their inappropriate use
of social media. One thing is clear amidst the
litigation that has started to emerge from these
situations – employers are now implicated in their
employees’ private lives in never-expected ways,
and must consider the risks that these activities
may present to their business.
The purpose of this alert is to describe some
of the legal issues involved in employee use of
social media, and to outline what employers can
do to protect themselves against these risks.
OFF-DUTY CONDUCT
Traditionally it has been very difficult for
employers to police off-duty conduct unless
there is some reasonable connection with the
employment relationship or it negatively affects
the legitimate business interests of the employer.
Courts and arbitrators have recognized that
employers have a right to protect their business
interests if the employee has damaged their
goodwill and adversely affected their ability
to manage their business. In determining this,
adjudicators have considered factors such
as the nature of the employee’s duties and
the employment relationship, the nature and
seriousness of the employee’s conduct, and
the impact of that conduct on the employer’s
business and reputation.
1
Usually there must be some connection between
the employee’s actions and the employer’s
interests. For example, a security company may
be unable to continue to trust a security guard
who was shown publicly looting a store, and this
information could hurt the company’s business
reputation with its customers. However, unlawful
conduct does not necessarily justify terminating
an employee or imposing other discipline. In fact,
if an employee is charged with an offence, he or
she may have protection from discrimination under
human rights legislation, as outlined below.
Arbitrators and adjudicators have found a
connection between inappropriate social media
postings or blogs and employment in several
recent cases:
• A n arbitrator substituted a suspension instead
of a discharge for an employee who was
terminated after his employer discovered
that his blog contained racist and offensive
comments glorifying Nazi Germany.
The arbitrator found that there was a
connection between the blog and the
individual’s employment because he had
mentioned the employer and posted photos
of himself at work.1
• A n arbitrator upheld the discharge of a
government employee who was terminated
after making negative comments in her
blog about her employer and co-workers,
including posting confidential information and
referring to her co-workers as “aliens” and her
EV Logistics v. Retail Wholesale Union, Local 580 (Discharge Grievance), [2008] B.C.C.A.A.A. No. 22 (Laing)
LABOUR & EMPLOYMENT LEGAL ALERT | JULY 2011
2
workplace as a “lunatic asylum.” In doing so,
he noted that publicly displaying opinions about
work-related issues may have consequences
within the employment relationship.2
• A n arbitrator upheld the discharge of an
employee for breaching a confidentiality
agreement, insubordination and conduct
unbefitting a personal caregiver at a seniors’
home after she published information
and photographs of residents, and made
inappropriate comments about the seniors in
her care and her employer.3
• A n arbitrator upheld the discharge of an
airline pilot who was terminated as a result
of Facebook postings containing racist,
disrespectful and derogatory comments about
the company’s owners and customers.
The arbitrator noted that in making comments
online, the “individual doing so must be
assumed to have known there is potential
for virtually world-wide access to those
statements” and found that there was a
real and material connection to the airline,
even though the grievor did not identify his
employer. Given that the particular airline did
business in the North with many First Nations
customers, who may have been offended
by the comments, the arbitrator found that
the company had justifiable concerns about
potential reputational harm.4
• The B.C. Labour Relations Board found that
two employees at a car dealership were
justifiably terminated for making insubordinate
comments about their employer’s business
and their manager.5
However, these will always be very factspecific cases. Given the inherent difficulties
of demonstrating a connection between an
employee’s online activities and an employer’s
business, it is always preferable for employers to
make expectations for employee conduct – on or
off-duty – clear from the start.
PRIVACY ISSUES
The traditional unwillingness of the courts to
regulate off-duty conduct is based in large part
on the notion of individual privacy – that the
employer’s reach should not extend outside the
workplace into an employee’s private life.
2
3
4
5
6
In addition, many provinces now have personal
information legislation that governs the collection,
use and disclosure of personal information.
Generally, under this legislation, organizations
may collect, use or disclose “personal information”
only with the consent of the individual or if the
information would fall into several enumerated
exceptions. An organization must collect, use and
disclose personal information only in a manner
which a reasonable person would consider to be
appropriate in the circumstances.
Much of the information posted by people online
may be considered “personal information” under
this legislation. Employees who have posted what
they consider personal information on social media
may have legitimate concerns about this
information being collected by their employer –
during the employment relationship, or even before
being hired as part of the screening process.
Related to this is the key issue of whether an
employer has a right to monitor employee’s
actions. Generally, privacy commissioners consider
a variety of factors in determining whether an
employer’s actions in monitoring employees are
reasonable, including whether the monitoring is
reasonably necessary and effective in meeting
a specific need, whether the loss of privacy is
proportional to the benefit gained, and whether
there is a less privacy-intrusive way of achieving
the same end.
A recent criminal case in Ontario, R. v. Cole,6
has suggested that an employee may have a
reasonable expectation of privacy in the personal
use of a company-provided laptop, unless there is
a clear workplace policy that establishes a right to
monitor or search the use of a laptop.
The collection of employee personal information
online raises complex legal issues. The employee’s
right to privacy with respect to their personal
information must be balanced with the employer’s
need to manage the employment relationship and
its own business interests. Therefore, before
reviewing information relating to an employee
online, employers should carefully consider all
of these issues.
HUMAN RIGHTS ISSUES
Monitoring online information may also raise
issues for employers under human rights
Alberta Union of Provincial Employees v. Alberta (R. Grievance), 174 L.A.C. (4th) 371 (Ponak, Bartee and Workman), rev’d on other
grounds, 2009 ABQB 208
C
hatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada),
Local 127 (Clarke Grievance), [2007] O.L.A.A. No. 135)
Wasaya Airways LP v. Air Line Pilots Assn., International (Wyndels Grievance), 195 L.A.C. (4th) 1
Lougheed Imports Ltd. (c.o.b. West Coast Mazda) (Re), [2010] B.C.L.R.B. No. 190
2011 ONCA 218
3
legislation. In addition to the privacy concerns
identified above, monitoring employees’ online
activities or surreptitiously “Googling” job
applicants can expose employers to human rights
complaints. Obtaining information about personal
characteristics such as age, ethnic or cultural
background, marital or family status, sexual
orientation or any other prohibited grounds of
discrimination may be problematic if it is perceived
to be a factor in any subsequent employment
decision concerning the employee.
In addition, human rights legislation in most
provinces offers some degree of protection
against discrimination based on a criminal
record. For example, the B.C. Human Rights Code
specifically prohibits refusing to employ, or to
continue to employ, a person because he or she
has been convicted of a criminal or summary
conviction offence that is unrelated to the
employment. This provision has been interpreted
to include criminal charges, so if an employer
terminates an employee specifically because
the person has been charged with a crime
(e.g. a charge relating to the Stanley Cup riots),
there may be a claim that this is a breach of the
Code. In order to avoid liability the employer must
demonstrate a link between the offence and the
position in question.
Therefore, in some provinces, terminating or
refusing to hire an employee based on online
information that indicates a criminal record may
expose an employer to human rights complaints
from employees or unsuccessful candidates
who have convictions that are unrelated to their
potential employment. Regardless of the factors
actually considered, the fact that the employer has
information about unrelated criminal convictions
during the decision process can make it difficult
to defend such claims.
LABOUR ISSUES
Employers should also be aware that there may
be other legal protections given to certain online
communications by employees. For example,
most labour legislation in Canada contains
provisions that prohibit discrimination against
employees because of their involvement with
trade unions. Therefore, in some cases, an
employee’s postings may be protected under
applicable labour statutes.
This was an issue in the recent Lougheed
Imports Ltd. case noted above.7 In that case,
both terminated employees were strong union
supporters who had made a variety of disparaging
comments on Facebook about their superiors
7
8
and their employer. Their union filed unfair
labour practice complaints with the B.C. Labour
Relations Board, alleging that their terminations
were motivated by anti-union animus. However,
the Board found that the employees’ conduct was
insubordinate and damaging to the employer’s
reputation, and that the employees did not have an
expectation of privacy in the postings.
DEFAMATION
Statements posted online that negatively impact
the reputation or image of another person, business
or product may be considered defamation, and
present a legal risk to the person who authored the
post – and to the employer if the negative comments
were made online while at work, or while using an
employer-provided laptop or smartphone. In that
situation, employers may be vicariously liable for an
employee’s defamatory postings.
Several cases in the U.S. have recently focused
attention on this issue, such as the recent
settlement in a claim against rock star Courtney
Love arising out of negative comments she made
on Twitter about a fashion designer. Inevitably
we will see similar cases in Canada, further
emphasizing the need for employers to proactively
address the use of social media by employees.
HARASSMENT
Employees’ online activities may also constitute
harassment of other employees. In a recent case,8
an owner of a company was found to have sexually
harassed an employee by sending her unwelcome
text messages that contained sexual propositions
and offensive comments. This case and others
reiterate the need for employers to have both
harassment and social media policies that address
issues such as respectful communications and
inappropriate conduct.
In addition, bullying or harassing postings on
social media may also lead to complaints under
applicable harassment, workplace violence or
bullying legislation.
SOCIAL MEDIA POLICIES
While off-duty online conduct may justify
discipline in certain circumstances, it is always
preferable to have policies that directly address
social networking and blogs. In developing such
policies, employers should consider including
provisions that:
• R
emind employees that online communications
can be read by anyone (including their
employer and co-workers);
L ougheed Imports Ltd. (c.o.b. West Coast Mazda) (Re), [2010] B.C.L.R.B. No. 190
M
cIntosh v. Metro Aluminum Products Ltd. and another, 2011 BCHRT 34
• R
eiterate the employee’s duty of loyalty to the employer, and any
applicable policies concerning harassment, intellectual property,
IT/computer use, conflicts of interest and privacy;
• Prohibit employees from:
oUsing company-owned resources for social networking or blog
activities while at work (if this is appropriate for the workplace);
oDisclosing any confidential information, including information
relating to other employees or customers;
oPosting material that may violate the privacy rights of other
employees, including photographs or videos taken at work or
company social events;
oPublishing any negative comments about the employer or other
employees, or any comments that may negatively affect the
employer’s reputation;
• Expressly warn employees that any breach of the policy may result
in discipline up to and including termination; and
• Advise employees if the employer monitors social networking sites.
As the above discussion demonstrates, regulating off-duty online conduct
or collecting online information about employees can be a potential
minefield of legal issues for employers. Therefore all employers should
have carefully-drafted policies that expressly outline the employer’s
expectations concerning these issues. Given the extraordinary power
of online tools, and the significant – and immediate – damage to an
employer’s reputation that inappropriate postings may cause,
it is essential that employers revisit their existing IT and computer
use policies, and consider including these provisions.
We live in a time when the traditional distinctions between on and off-duty
conduct are quickly becoming blurred by technology. The use of social
media during the Stanley Cup riots and their aftermath vividly illustrates
the unique ways these tools are now involved in employment relationships,
and it is essential for employers to turn their minds to these issues and
address them, so that the rules – and expectations – are clear.
AUTHOR
Peter Eastwood
Vancouver
604.640.4046
peastwood@blg.com
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