Employers’ Use of Social Media to Monitor and Evaluate Employees

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As social media continues to permeate our daily lives and workplaces, it is important that employers understand how to keep on the right side of using information taken from social media in monitoring and evaluating their employees. Likewise, employees should be aware of how and when their activities on social media, even while outside of the workplace, may become an issue with their employer or a prospective employer, and may choose to avoid or moderate their activities.

Privacy issues are an important initial consideration. Employers that fall under the purview of the Personal Information Protection Act (PIPA) are limited in the collection, use and disclosure of personal information of their employees and the public. However, PIPA and its regulations provide that an employer may use personal information without consent of the individual if it is available from a public source or the use is reasonable for the purposes of establishing, managing or terminating an employment relationship between the organization and the individual. In applying this to social media, while a public account would likely fall under both categories, use of information from a private account would likely need to meet the conditions under the second category for use to be permitted.

Careful evaluation of the online material and its effects is also very important for employers. Generally, discipline and dismissal for employees’ off-duty conduct, including social media use, should be rare, but may be warranted where the use prevents satisfactory work performance or effective work with colleagues; or results in harassment or defamation of management, the employer, fellow employees or customers; or undermines management’s ability to direct its workforce. Whether an employer’s response to an employee’s social media activity is warranted, the nature of that response must be measured considering the relevant factors, such as the content of the post(s), their target, purpose, audience and effect.

Given the highly contextual nature of this area of law, online defamation and insubordination of an employee may not justify termination of their employment in all the circumstances. For instance, in the case Re Maxam Bulk Services and IUOE, Local 115 (Lebrun) (“Maxam”) [1], the employer worked for a distributor of explosives in the mining industry and dismissed an employee on account of defamatory remarks on his Facebook page. The posts included insults against the employer, the employer’s sole customer and suggestions that the customer was responsible for unethical and potentially illegal practices at mine sites. When the employee’s union brought an action for unjust dismissal, the arbitrator found that the employment relationship was not irreparably damaged and that dismissal was excessive. The arbitrator took into account that the employee had an otherwise unblemished record of four-and-a-half years’ service, showed remorse and understood the employer’s concern with the situation. Therefore, although the employee made several publicly available online posts that had potentially serious and harmful repercussions to the employer, termination of employment was ultimately not found to be proportionate considering the entirety of the employment relationship.

Likewise, in the case of EV Logistics v Retail Wholesale Union, Local 580 [2], even though the employee’s personal views published online were highly offensive and unpopular, his termination was still determined to not be warranted. In this matter, the employee was dismissed after his workplace discovered his personal blog which contained violent and racist remarks and a focus on Nazism. The employee specifically named his employer on the blog and referred to certain employment activities. While the BC Labour Relations Board accepted the employer’s submission that the employee’s off-duty conduct was sufficiently connected to its business interests and was of such a serious nature to warrant discipline, the board overturned the dismissal. The board made this decision based on the fact that the employee’s remarks were not specifically directed at his employer, colleagues, customers or the companies’ products, and the employee had immediately shut down the blog after it was discovered and issued an apology. The board ultimately was of the view that the employee was capable of successful reintegration into the workplace.

However, online misconduct may be grounds for termination, and online spaces may in certain cases be seen as an extension of the workplace. In Lougheed Imports Ltd v UFCW, Local 1518 [3], two employees were fired due to comments made on their Facebook pages. The employees had made damaging remarks about the employer’s business and insulted supervisors and managers. The employees’ union argued the employer did not have cause for their dismissal and was rather motivated by anti-union animus. The BC Labour Relations Board disagreed, though, and upheld the terminations. The two employees had 100 and 377 Facebook friends, which included coworkers, former employees and an existing manager. As such, the board found that the employees could not have had a serious expectation of privacy for the comments they posted. The board therefore treated the employees’ online comments as though they had been made in the workplace.

Careful evaluation of harmful online posts about an employer, which raise the possibility of termination or discipline, may require an employer to adequately investigate the source of online content. Preserving such evidence presents several challenges; therefore, it is essential that employers take the appropriate steps to collect as much information as possible before moving to terminate. The significance of failing to do so was demonstrated in a recent case, Ojanen v Acumen Law Corporation [4]. In this matter, a law firm discovered a blog that it believed belonged to an employee and viewed the blog as competing with the firm’s business. After being terminated for the blog, the employee brought a successful action for wrongful dismissal. The employee’s award was significantly increased at the BC Court of Appeal and additionally punitive damages were awarded against the employer. The Court considered the employer’s actions as unfair and insensitive, including that the employer dismissed the employee without even asking her about her involvement with the blog or her intentions in undertaking it. The employer had not told the employee that internet postings that trenched on the firm’s practice interests were forbidden. The employee additionally gave evidence that she herself had not created the blog. The Court therefore found that the employer unfairly jumped to conclusions and wrongly terminated the employee after learning of the blog.

In Summary

The following principles can be drawn from the current case law:

  • An employer may use public social media posts made by employees for managing or terminating an employee.
  • An employer may potentially use private social media posts if the use is reasonable for managing or terminating an employee.
  • Employers may face difficult decisions based on the degree of relation of the post(s) to the business or its other employees and the circumstances of the post(s) and the employee.
  • Employers should consider implementing social media policies to inform employees and management on the employer’s rules and preferred practices.

While the above cases provide useful examples of how social media interacts with the workplace, they are by no means a complete picture of this area of law, especially as it continues to evolve with technology. Workplace matters involving social media can raise several issues for employers and employees, particularly with respect to evidentiary concerns such as identifying the poster and preserving evidence. It is recommended that any employer or employee facing similar workplace issues involving social media consult with a lawyer for further information and context-specific advice.

Sources

1. Re Maxam Bulk Services and IUOE, Local 115 (Lebrun), [2015] BCWLD 6594, 2015 CarswellBC 2277 (BC Arbitration).
2. EV Logistics v Retail Wholesale Union, Local 580, [2008] BCWLD 2815, 2008 CarswellBC 357 [BC Labour Relations Board].
3. Lougheed Imports Ltd v UFCW, Local 1518, 2010 CarswellBC 3021 (BC Labour Relations Board).
4. Ojanen v Acumen Law Corporation, 2021 BCCA 189.
 

 

David Edinger maintains a broad commercial litigation practice and has a range of expertise involving entertainment law, construction law, professional liability, and directors and officers liability. David has extensive experience in employment and labour law and has advised employers and employees in relation to hiring, termination, severance, confidentiality, non-competition, and non-solicitation and provided related advice on Human Rights Code and Employment Standards Act matters.

 

 

Kailey Graham assists clients in a range of workplace law matters as a part of her general commercial litigation practice, including wrongful dismissal, shareholder disputes, and human rights issues. She has experience in drafting a variety of employment documents and agreements.

 

 

 

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