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, [2013] 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 policy.

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.

  1. Remind employees that social media is not a secure or private form of communication.
  2. Set boundaries on the use of social media during business hours that fit your workplace.
  3. Address representations: are the employees representing the company when online?
  4. Advise employees that their social media activities may be monitored and reviewed if appropriate.
  5. Notify employees that they are responsible for their activities and they may be held accountable. Warn them of the consequences.
  6. 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.