Everything Old Is New Again! The Use Of Social Media In The Course Of The Employment Relationship

In my last blog “Be Careful What You Wish For: The Use of Social Media In The Hiring Process”, I discussed some of the pros and cons of using Facebook, Twitter or other social media in making hiring decisions. This blog considers the use of social media in the course of the employment relationship.


The starting point is to recognize that the principles that apply to the employer’s
response to social media issues are found in cases that pre-date the introduction of the world-wide web into our personal and working lives. Some of these principles are as follows:

1. CONDUCT OUTSIDE OF THE WORKPLACE MATTERS. What an employee does outside of the workplace can negatively impact the employment relationship, even before it starts! With the advent of social media, it is just easier now for employers to access evidence of an employee’s comments/conduct outside of the workplace.
2. EXPECTATION OF PRIVACY. A lot of employees think that social media sites are private. Generally, they are NOT! The caselaw indicates that the misunderstandings about the level of privacy offered by social media sites and/or blogs have not been accepted by arbitrators as an excuse for posting defamatory or confidential information online.
3. FREEDOM OF SPEECH DOES NOT LET THE EMPLOYEE OFF THE HOOK. Employees cannot simply invoke free speech to publicly make derogatory comments online about co-workers, management or the employer, or to breach confidentiality online about internal matters to avoid disciplinary action.
4. THE PUNISHMENT MUST FIT THE CRIME. Of course, “punishment” should never be part of an employer’s response to a workplace issue, but this saying reminds us that the manner in which an employer deals with the problem must be proportionate to the misconduct in question. When it comes to disciplinary action, everything must be considered in context.

These principles appear in the caselaw relating to an employer’s ability to discipline employees for their off-duty conduct. Although most of the cases have arisen in unionized workplaces, they offer guidance for non-unionized workplaces too.

In one of the earliest decisions relating to this issue, Re Chatham-Kent (Municipality­) and CAW[1], a personal care giver at a municipal nursing home created a website that was accessible to anyone with internet access. Over the course of four months, the employee made sixteen entries to her blog that were laced with coarse language in describing the nursing home, co-workers and residents. The employee claimed to have thought the blog was private. The employer terminated her employment for cause and the termination was upheld on the basis of the employee criticism of management and her breach of a confidentiality agreement which prohibited disclosure of personal information about the nursing home’s residents.

In another early case, Re Alberta and Alberta Union of Provincial Employees[2], an employee was discharged for blogging about her workplace. Specifically, the employee wrote a blog post entitled “Aliens Around the Coffee Table” in reference to her co-workers. She wrote another blog post entitled “SNAFU – Situation Normal, All F%&ed UP” in which she asked “Does anyone else out there live in a world like mine with imbeciles and idiot savants (no offence to them) running the ship?” The termination was upheld, partly on the grounds that the blog posts were found to be insubordinate and breached the standards of respect and dignity owed to workplace colleagues.

A more recent case, Wasaya Airways[3], concerned off duty conduct on Facebook. Wasaya is an airline owned by a number of First Nations and services First Nations communities in Northern Ontario. A pilot of Wasaya posted an update on his Facebook page in which he listed ten items below the heading “You know you fly in the north when...” The ten items were derogatory towards First Nations people. Wasaya terminated the pilot’s employment for cause. Although in the final result a suspension and resignation was substituted for the termination, the pilot did not return to the workplace, largely on the ground that his Facebook post had poisoned the work environment.

Although there are more cases that consider these issues, the point is that, depending on the facts of the case, employers can use information gathered on social media to discipline and/or discharge employees. However, in order to reduce the risks with taking such an approach, employers should consider implementing a (or reviewing and revising an existing) social media policy that does the following:

1. Outlines the employer’s approach to social media (e.g. are employees encouraged to have an “online presence”?);
2. Explains that comments/posts may become more widely available to the public than the employee expects;
3. States that information posted by employees could have an impact on the employer;
4. Prohibits speaking on behalf of the employer;
5. Limits or prohibits the use of social media during the employee’s working hours;
6. Advises employees whether their use of social media at work, or on devices owned by the employer (e.g. laptop, tablet, smart phone, etc.) will be monitored; and
7. States that a breach of the policy will result in discipline.

It is important for employers to understand that social media can be used in making disciplinary decisions, and when such decisions are being made, some of the old principles, with which employers are already familiar, will apply.

If you have any questions or would like more information on this topic, please contact Andrea Bezaire at andrea.bezaire@siskinds.com or call 519-672-2121.