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Legal Update: 10 Tips to Deal with Employee Discipline for Social Media Use

By Jack Graham, Lana Rafuse March  1, 2012
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Social media represents a profound cultural shift and employers must adapt if they want to avoid unnecessary – and potentially costly – trouble. The recent explosion in social media use means there are many more issues – and adjudicative decisions. As employment law evolves in response to the prevalence of social media in our day-to-day lives, employers struggle to deal with its impact in the workplace and the blurred line between work time and “off duty” time it creates. Employers can, however, discipline employees who go over the line. We have 10 tips to help you draw that line clearly, and in the right place.

 

Why another article about Facebook?

 

• Facebook had more than 800 million active users last year;

• 1 of every 13 people on earth use Facebook – over half log in daily;

• Facebook would be the world’s 3rd largest country; and

• More than 17 million Canadians – close to half the population – are Facebook users, up by about a million in less than a year.

 

People spend over 700 billion minutes each month on Facebook. You can safely bet some of them are your employees. Social media, like Facebook, is now a fundamental way to communicate, and perhaps the modern way of doing business. It makes constant contact and instant communication easier than ever, and reformulates what “privacy” means.

 

Five years ago, there were only a few media accounts of employees being “deuced” – slang for being fired due to Facebook activities, and a handful of reported Canadian decisions where Facebook played some role, typically as a source of information about plaintiffs with injury claims. In sharp contrast, last year, there were hundreds of Canadian cases with Facebook issues, a high percentage relating to employment. Clearly, just about every HR issue may include social media aspects.

 

“Off Duty” Conduct in the Social Media World

 

Some basics remain despite our web-based world and the complications it fosters. Employers still have the right to manage their business, to know if employees are doing the job they are paid to do, and to protect their assets, including their reputation and brand. Employers still have the legal duty to provide a safe and harassment-free working environment for other employees. What employees do on their own time is generally their own business, but when an employee’s conduct negatively impacts the employer’s organization it becomes the employer’s business. Employer rights and duties do not disappear simply because employee activities take place on the Internet.

 

What happens in the workplace and its Internet aftermath can overlap and blur. An incident in late 2008 provides an early example. A California restaurant fired three scantily clad teens after they published raunchy on-line photos of themselves bathing together in the restaurant’s large sinks. This level of misconduct, both in the sink and on social media, clearly had the potential to harm the employer, not the least by damaging its reputation as a safe and healthy place to eat.

 

More recently, the British Columbia Labour Relations Board upheld the dismissal of two employees who made threatening and homophobic comments about their supervisor and disparaged the employer’s products and services on Facebook. That the employees made the comments outside of work and from home computers was irrelevant.

 

The Board also rejected the employees’ argument the employer violated their privacy. The Board found no serious or reasonable expectation of privacy in the insubordinate and damaging comments the employees shared with their Facebook “friends” – all 477, including other employees.

 

The employees complained the employer tracked their Facebook activity without warning and did not provide warning that inappropriate posts may result in dismissal. However, the Board found their egregiously derogatory and abusive Facebook rants were clearly well over the line of acceptable comment, and a specific warning against Facebook misconduct was not an essential precondition to employment termination in the circumstances. However, we caution that other adjudicators have been sympathetic to employees pleading they did not recognizethe public nature of a Facebook group absent a clear warning from the employer.

 

Click here to read the decision of the British Columbia Labour Relations Board in Lougheed Imports Ltd. (c.o.b. West Coast Mazda),[2010] B.C.L.R.B.D. No. 190.

 

10 Tips to Help Employers Draw the Line on Social Media Use

 

Many employees simply do not appreciate the lack of privacy in social media or understand that anything they put on the Internet is inherently public and permanent. This December 2011 demonstration illustrates it is unrealistic to expect Facebook privacy: a group of users exploited a Facebook programming bug, broke into the Facebook CEO’s private account and posted 14 of his personal pictures on an internet image hosting website under the title “It’s time to fix those security flaws, Facebook.”Other employees may just have a fundamentally different view of privacy, appreciating that social media is inherently public, but regarding discretion as a sort of social hypocrisy.

 

It is important for employers to educate all employees about the nature of social media and the employer’s legitimate need to protect its business interests, and make all employees aware it will take appropriate disciplinary action for Internet misconduct that defames the employer, harasses co-workers, or otherwise hurts the employer’s interests.

 

It is equally important for employers to remember they are not powerless in the face of employees’ embarrassing and potentially harmful online activities. Employers can discipline employees who go over the line. Here are 10 tips to help to draw that line clearly:

 

1. Policies. Most employers know that policies regulating technology use in the workplace, especially when it belongs to the employer, are necessary. Make sure you draft or update policies on acceptable use of any social media or communications technologies no matter who owns the technology or where employees use them.

 

2. Handheld Communication Devices. Include rules for acceptable and prohibited use of handheld communications devices in your policies, whether they belong to the employer or employee. Distraction is a very real safety issue with these tools. For example, studies have determined a truck driver takes his eyes off the road for an average of five seconds when texting; this can equate to traveling the length of a football field. The risks are obvious.

 

3. Privacy Education. Educate employees on the diminished expectation of privacy on the Internet.

 

4. Reasons for Policy. Clarify to employees the legitimate business reasons for your social media policy and the potential consequences for violations.

 

5. Communicate Regularly. Communicate your policy and expectations to your employees, and refresh periodically. They should sign off on their knowledge and acceptance of the policy.

 

6. Focus on Performance. When disciplining employees, focus on the impact on job performance rather than the circumstances of the off-duty conduct. If your employee’s social media activity truly puts your organization’s business interests in jeopardy, courts are more likely to sanction discipline.

 

7. Be Even-handed. Apply the same level of scrutiny across the board and be consistent with discipline for comparable offenses. You can’t suspend one employee for social media antics and ignore another under similar circumstances.

 

8. Confidential Information. If you need to protect your company’s confidential information and trade secrets, have employees sign nondisclosure agreements rather than relying on policy statements.

 

9. Intellectual Property. If you use social media for marketing or other business communications, use intellectual property agreements to spell out clearly that the employer owns and controls all the important elements, including accounts, content, “friends” or followers, etc.

 

10. Legal Advice. Get legal advice before firing or disciplining a worker for off-duty activity. You may be at risk of more negative repercussions that merely being “unfriended” by the offender.

 

 

 

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 McInnes Cooper’s newsletters are prepared for information only and are not intended to be either a complete description of any issue or the opinion of our firm. McInnes Cooper should be consulted regarding any situation to which any topic discussed herein might apply.

 

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