By Graeme McFarlane

The numbers are astonishing.  There are more than 500 million active users.  Half of those – a quarter of a billion – use it every day.  Each uses it with an average of 130 people.  Every month people spend over 700,000,000,000 minutes using it.  What is it?

Facebook.

The rapid growth in the use of Facebook and other social media platforms has injected a whole new set of concerns for employers.  Serious problems have emerged from their use, including decreased productivity, defamation, disparagement of managers, disclosure of confidential information and harassment of employees.  Certain of these problems are complicated by the fact that some of these behaviours occur “off-duty”.

The good news is that employers can expect that employees will not harm them through the use of social medial sites.  A relatively recent example indicates that an employer may terminate the employment of individuals who misuse these platforms.

The British Columbia Labour Relations Board described such a situation in the decision in West Coast Mazda and UFCW, Local 1518, BCLRB No. B190/2010.  In this case, two employees were Facebook friends with their manager.  Over a period of time, the manager noticed various postings that were critical of both the management of the business and the business itself.  Examples of postings included statements like the “[Boss] is a complete jack-ass … not just half-a tard” and “West coast detail is a *&$%* joke … don’t spend your money there … they are crooks and out to hose you …”

The employer investigated these postings and the two employees denied making derogatory comments about the business and its management.  The two employee were fired for cause.  The employer reasoned that the employees had posted disrespectful, derogatory and potentially damaging comments on Facebook.  The employer also relied on the fact that the employees were dishonest during its investigation.

The Labour Relations Board upheld the employer’s decision.  It found that the Facebook comments were damaging to the employer’s business.  Regardless of the fact that the postings were made off-duty, it decided that the employees had no reasonable expectation that comments posted on social media could be private.  In addition, it held that the postings about the supervisor were serious and insubordinate.  The employees’ dishonesty during the investigation compounded their misconduct.  The penalty imposed by the employer was not out of proportion with their serious misconduct, and the employer was justified in terminating the employees.

In another case, the British Columbia Employment Standards Tribunal upheld another employer’s decision to terminate and employee for inappropriate Facebook postings.  The employee was away on maternity leave.  While absent from work, she posted a disparaging comment on a co-worker’s Facebook page.  She criticized her employer in postings on her own page as well.  The employer found out about these postings, and as a result, refused to allow her to return to work after her maternity leave.  The employee filed a complaint alleging an unjust dismissal.

The Tribunal dismissed the complaint holding that the employer had just cause to terminate the employee.  It held that by making the Facebook postings, the employee had breached her duty of loyalty and faithful service.

The trend in these cases suggests that the various employment adjudicators have recognized the special characteristics of social media.  These platforms allow potentially disparaging comments to be broadcast to a very large public audience that includes customers and suppliers.  The damage to reputation can be instant and severe.  Once the damage is done, it can be very difficult and expensive to repair.

A good way for an employer to protect itself from these problems is to implement a comprehensive social media policy.  Some important elements of such a policy would include:

The type of permissible and impermissible conduct with respect to the following:

• Personal internet use at the workplace and off duty conduct;
• Participation in company and employee Facebook groups;
• Disparagement and defamation of the employer and its employees, customers, clients and suppliers;
• Breach of confidentiality; and
• Discrimination and Harassment
• Examples of inappropriate use in cyberspace;
• Employees may not directly or indirectly represent that they are speaking on behalf of the employer during their online activity;
• Prohibition against the use of the employer’s intellectual property like brands, logos and trademarks;
• A warning that employees may be held personally liable to third parties for their online comments;
• A warning about the consequences of breach: eg. discipline up to and including termination of employment; and,
• A warning that legal action will be taken, if necessary, against ex-employees for disparaging and defamatory comments made post-employment.

Social media is here to stay.  It will likely become even more pervasive.  However, with a little planning, employers can stay abreast of this technology and protect their business and employees.

Graeme McFarlane is a partner at Roper Greyell LLP which is a firm focused on partnering with companies to find solutions to workplace legal issues.

(PeopleTalk Winter 2011)