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.  

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:  

  • An 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 arbitra tor 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  
  • An 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 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
  • An 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
  • An 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 arbitra tor 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 emplo yees 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 fact-specific 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. 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 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 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:  

  • Remind employees that online communications can be read by anyone (including their employer and co-workers);
  • Reiterate 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:
    • Using company-owned resources for social networking or blog activities while at work (if this is appropriate for the workplace);  
    • Disclosing any confidential information, including information relating to other employees or customers;  
    • Posting material that may violate the privacy rights of other employees, including photographs or videos taken at work or company social events;  
    • Publishing 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.