A recent U.K. study by global business law firm DLA Piper found that, of employees who use social media for personal use, 28% have posted photos of colleagues or business activities, 22% have posted a status update or tweeted about a colleague, 14% have posted a status update or tweeted about work issues, and 1% have posted confidential information. The numbers are likely similar in Canada.
In many cases, the use of social media in the workplace has resulted in “time theft” or breaches in privacy or confidentiality rights of co-workers and has negatively affected an employer’s business. Here are seven challenges and strategies to minimize employer risk and liability.
1. Off-duty conduct
The general principle relating to employees’ off-duty conduct has been that what employees do on their own time is their business. Employers must respect the legal rights of employees to create or participate in blogs or online social networks.
However, employers are justified in addressing employee off-duty online conduct when it negatively affects the employment relationship, including the legitimate business interests or reputation of the employer, depending on the seriousness of the misconduct and the nature of the employee’s position.
In EV Logistics and Retail Wholesale Union, Loc. 580 (Re), an employee was terminated after his employer discovered that he had a blog that contained racist and offensive comments glorifying Nazi Germany. The arbitrator found that even though the hateful remarks were not directed at the employer, 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.
The arbitrator also found that the employee’s online conduct “adversely impacts on the legitimate business interests of the employer” and noted that harm from the employee’s conduct could be presumed because there was public access to the postings.
However, the employee was suspended rather than terminated because he was 22 years old, suffered from depression, had difficult family circumstances and apologized for his actions.
2. Privacy issues
Online activity by employees raises privacy issues, because information posted online may be considered “personal information” under federal and provincial privacy laws. Generally, federally regulated employers are governed by the Personal Information Protection and Electronic Documents Act and provincially regulated employers are subject to provincial privacy legislation, which now exists only in Alberta, B.C. and Quebec.
Federal and provincial privacy legislation place substantially similar requirements on employers with respect to the collection, use and disclosure of employees’ personal information. First, an employer may collect, use or disclose personal information only with the consent of the individual, unless the information falls into several exceptions.
Second, the employer must collect, use and disclose personal information only in a manner and for a purpose that a reasonable person would consider appropriate in the circumstances.
Provinces such as B.C. and Manitoba also have a statutory tort of invasion of privacy. In Jones v. Tsige, the Ontario Court of Appeal affirmed the existence of a tort of “intrusion upon seclusion” in Ontario when a bank employee repeatedly viewed a co-worker’s banking information without authorization (the co-worker was the ex-wife of the employee’s boyfriend).
The court found that the defendant employee had committed the wrongful action and breached the co-worker’s privacy. The court set out the elements of the tort of intrusion upon seclusion as intentional or reckless conduct on the part of the defendant; any action that invaded the plaintiff ’s private affairs or concerns without lawful justification; and any action that a reasonable person would regard as highly offensive or causing distress, humiliation or anguish.
Although it’s unclear how the tort of invasion of privacy will work in the employment context, the common law right to privacy suggests that, at least in Ontario, online activities may be found to be in breach of other employees’ or the employer’s privacy interests.
3. Human rights issues
Human rights legislation across Canada prohibits discrimination in employment based on race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. Also, in many provinces and territories, discrimination is prohibited based on a criminal record or “source of income/social condition.”
If an employer makes (or is perceived to make) a hiring decision based on online information relating to these grounds, the employer may be exposed to human rights liability.
Employers should consider that information obtained through social media may fall within a protected ground.
4. Labour issues
Most labour legislation in Canada contains provisions prohibiting discrimination against an employee based on involvement with a trade union, so online postings in this area would likely be protected under these laws.
In Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518, two employees who were union supporters made a number of Facebook posts that contained derogatory comments about their employer and threatened violence in the workplace. The employer monitored their online activities without notification and then terminated them, around the time that the employer received a union certification notice from the labour board.
The union alleged that the terminations were motivated by anti-union animosity, conduct prohibited by the B.C. Labour Relations Code. The board, however, did not find that the employer was motivated by anti-union animosity. It found that the employees’ online conduct had irreparably breached their relationship with the employer and was cause for termination.