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EMPLOYMENT LAW
Dec 17, 2012

Confidentiality and social media

Online comments – even non-specific ones – can violate the confidentiality of a settlement
    

By Jeffrey R. Smith

There has been an increasing number of instances where employees have gotten themselves into trouble with their employers through their activity on social medial sites such as Facebook and Twitter.

The lesson that usually comes out of these cases is that when they bring their employers into the mix, there is a certain level of responsibility individuals face with the content of their online posts and there can be accountability for posts that can negatively affect the employer or the workplace.

We’ve seen employees get in trouble for denigrating or threatening co-workers and management online, saying things the employer doesn’t want to be associated with and things that could hurt the business by alienating clients. But, recently, another situation has arisen in which an employee can get into trouble on social media — violating a confidentiality agreement by commenting on a settlement in which the employer was originally in the wrong.

In September 2011, an Ontario employer reached a settlement with an employee for compensation from a human rights complaint against the company and a manager. As part of the settlement, neither the employer nor the employee was allowed to reveal the details, except to immediate family or legal and financial advisors.

However, the employee posted a comment on Facebook during the mediation about the employer’s argument. Shortly after the settlement was reached, the employee posted another comment saying she didn’t get everything she wanted but she did get something. Another comment followed a little later.

The employer refused to pay the settlement money and tried to have the settlement declared null and void. The Ontario Human Rights Tribunal agreed the employee shouldn’t have made the online posts about the settlement, but found the employer also violated the settlement by failing to pay. The company was ordered to pay the employee, but the tribunal reduced the amount in recognition of the employee’s confidentiality breach.

Social media and connectivity are so prevalent that it’s easy for anyone to post something online for anyone to see. But when there are confidentiality concerns — especially a specific agreement — everyone must tread with caution and show some restraint when it comes to sharing information online.

In this case, a few comments on Facebook cost the employee some money in terms of a reduced settlement. For employers, it’s also important to remember that an employee’s violation of a settlement’s terms doesn’t give the employer free rein to not live up to its end of the settlement as well.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com. For more information, visit www.employmentlawtoday.com.

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