By Ryan McFarlane

With websites such as Facebook, Twitter, Friendster, Linkedln, LiveJournal, MySpace, Delicious, Digg, Youtube, etc, our daily montage of comments, observations, celebrations, drunken debauchery, frustrations, relationship woes and what we ate for breakfast are now more public than ever before. But how does this online instant publication translate into the world of employment law?

Take one frustrated and social media savvy (“addicted”) employee with hundreds of online “friends” who in turn each have hundreds of “friends”  and the potential danger to an employer’s business becomes staggering, very real and potentially limitless.

That is exactly what happened in a recent case before the British Columbia Labour Relations Board in Re Lougheed Importers Ltd., BCLRB No. B190/2010. Two employees posted numerous derogatory, disrespectful and damaging remarks about the employer and other employees on Facebook. The status updates and “wall” posts included angry, sexually inappropriate and potentially violent remarks about management and other employees. The allegations included a suggestion that two supervisors were performing sexual acts in the bathroom at work, referred to stabbing someone and called the boss a “complete jack-ass”. The frustrated employees even went so far as to urge people not the use the employer’s services. One of the employees posted they “are crooks out to hose you and the shop ripped off a bunch of people I know.” The employer, not surprisingly, fired the employees. Disappointingly, the Union objected to the employer taking such a draconian step, and filed a complaint with the B.C. Labour Relations Board.

The Labour Board found that the employees did not have a serious expectation of privacy in the material they posted on Facebook when the posts were read by their Facebook friends. The Board also found that the comments were “offensive, insulting and disrespectful” to the employer and to management and damaging to the employer’s business. Ultimately the Board decided that the employees were properly fired for cause.

On the other hand, in a recent Australian arbitration case: Fitzgerald v. Dianna Smith t/as Escape Hair Design [2010] FWA 7358 (24 September 2010) the arbitrator found that the employee’s Facebook post complaining about a lack of holiday bonus did not justify dismissal. The employee in this case did not specifically identify the employer in her posts nor did the arbitrator find that the online comments negatively affected the industry or the employer specifically.

Given the potential negative impact one employee can have on an employer’s business employers should consider the following protective measures:

1) Employee education about the appropriate and inappropriate uses of social networking media in relation to the workplace;

2) Implementing social networking policies that make it clear that online comments can affect employment; and,

3) Consult with legal counsel to determine if comments made online warrant a disciplinary reaction and if so, how severe?.

Your average person likely believes that he or she can say whatever comes to mind on Facebook because it is “private” and “between friends”. In Re Lougheed Importers Ltd. it did not matter that the comments were made outside of working hours or with a non-work computer. The comments become a workplace issue if there is a real connection between the work place and the comments made.

Strictly speaking, many other policies that employers may already have in place (eg. confidentiality, privacy, harassment etc) likely capture unacceptable social networking commentary about the employer’s business or its staff. But how likely is it that your average employee will look at your confidentiality policy and connect the dots from their duty of loyalty, fidelity and confidentiality back to their latest wall post, status update or tweet? The answer is: not likely. Therefore, with the rise of social networking already well upon us employers may wish to send a clear and unambiguous message to employees: Don’t talk about work online; if you do, your job may be on the line.

Ryan McFarlane is co-presenting A Practical Approach to Privacy: Shhh Don’t Tell in Kamloops on February 10, 2011. For more information on this and other professional development opportunities, please refer to BC HRMA’s online calendar.

Ryan McFarlane is an Associate lawyer with Ukrainetz Law (ulclaw.ca) in Vernon, B.C. This article is meant for reference only and should not be construed as legal advice.