Legal pitfalls show need for workplace social media policies, The Law Times, Vol. 23, No.37 (November 19, 2012)

Legal pitfalls show need for workplace social media policies, The Law Times, Vol. 23, No.37 (November 19, 2012)

By Nikolay Y. Chsherbinin

In Titus Andronicus, Shakespeare offered an apt recommendation for the social media age: “I tell my sorrows to the stones.” Modern society turns to social networking sites to tell people’s sorrows. As a result, misguided use of social media increasingly clogs the courts’ dockets. Employees’ online postings bursting with derogatory, offensive or insulting comments about their employers, employment relationships or co-workers can have serious consequences. They range from just-cause dismissal to reduction of settlement monies. A recent decision of the Ontario Human Rights Tribunal in Tremblay v. 1168531 Ontario Inc. offers a novel dimension of consequences for post-employment online blogging.

In this case, the dismissed employee filed an application for contravention of settlement pursuant to s. 45.9(3) of the Ontario Human Rights Code. She alleged her former employer had refused to pay the amount owing under the settlement. The employer responded with a similar application alleging the employee had breached the confidentiality provision of the minutes of settlement by disclosing on her Facebook page that there was a settlement and that she had received monetary compensation. The evidence revealed that during the mediation session, the employee posted: “Sitting in court now . . . feeding them a bunch of bull shit. I don’t care but I am not leaving here without money. . . .” Shortly after the mediation, she posted: “Well court is done didn’t get what I wanted, but I still walked away with some. . . .”

Having read these comments, the employer became concerned about its business reputation and that others within its small community might regard filing an application or suing the company as easy. Consequently, it decided not to pay out the settlement monies. This provoked its ex-employee to post comments relating to its failure to pay. At the hearing, the tribunal observed that there have been no cases before it where a breach of confidentiality has been found. Indeed, a breach of confidentiality is difficult to remedy because, once it happens, it’s virtually impossible to reinstate confidentiality. A word tweeted, confidentiality depleted.

In determining the appropriate remedy, the tribunal observed that a contravention of settlement undermines the administration of justice by discrediting the human rights system and generating disincentives to negotiation. In finding that an award of monetary compensation can help reflect both the private and public importance of complying with settlement terms, the tribunal reduced the amount owning to the ex-employee under the settlement by $1,000.

The jurisprudence dealing with an employer’s ability to dismiss an employee for cyberspace behaviour remains relatively undeveloped. Many employers are still unsure how to react to and limit misuse of social media.

For example, in the B.C. case of Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union Local 1518, the employees were discharged for increasingly insulting and hostile threads on their Facebook pages. The postings ranged from badmouthing their employer’s business to serial killings and revenge plots associated with their dissatisfaction at work.

In Alberta v. Alberta Union of Provincial Employees, the employee was discharged for just cause because in her online postings she called her supervisor a “lunatic in charge,” insulted easily identifiable co-workers, took an unprofessional attitude toward clients, and disclosed confidential correspondence.

In Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation, and General Workers Union of Canada Local 127, a personal caregiver at a home for the aged was discharged for breach of a confidentiality agreement after she created a public web site on which she published inappropriate comments about residents and co-workers, used profanity, and expressed dissatisfaction about decisions made by management.

In Wasaya Airways LP v. Air Line Pilots Association, International, Wasaya Airways dismissed one of its pilots for off-duty misconduct related to disparaging comments on his Facebook page about First Nations communities. Those communities comprised 90 per cent of the airline’s customers.

Taken together, these decisions confirm that employees can be disciplined and dismissed for inappropriate use of social media outlets. They also confirm that employers are slow to take decisive action for employees’ inappropriate online conduct.

Because many workplaces still lack a social media policy, employers are forced to monitor the employee’s offending online bahaviour until it’s deemed to have contravened other policies such as confidentiality and harassment. The delay in acting suggests employers’ uncertainty about the novel situation.

A social media policy could be an effective and efficient solution. The policy can be drafted to properly restrict employees’ on- and off-duty use of the Internet without encroaching on their freedom of expression. The policy should underscore the importance of not communicating in a manner that’s disrespectful, offensive, insulting, disloyal or damaging to the employer’s reputation. It should also limit employees’ reasonable expectation of privacy for publishing content online by stipulating that the employer reserves the right to monitor social networking sites without their knowledge or consent and rely on the published contents in support of its disciplinary actions, including dismissal.

Given that the law on social media isn’t yet clear, the notion of workplaces where employees are unsure of expectations towards their online behaviour should force prudent employers to take proactive steps to minimize misuse of the Internet and their exposure to wrongful dismissal lawsuits.

Failure to do so may result in needlessly expensive and protracted litigation during which employees could argue they didn’t know their online activities were public and employers would be burdened with proving that they knew the rules in order to justify their dismissal.

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