Question: How much authority can an employer exercise over what an employee posts on social media on her own time, particularly if the employer’s public image is important to its business? What about cases when the employee specifically mentions the employer or other employees?
Answer: The degree of authority an employer can exercise over what an employee posts on social media during her own time depends on a number of factors including — but not limited to — whether or not the employee is using a computer belonging to the employer, whether that employer has a social media/information technology policy and, of course, what the employee is posting about. This answer focuses on the postings themselves. There must be a nexus or some sort of connection between the posting and the employer/workplace to warrant employer interference.
Employers have already started exercising indirect authority over what employees post on social media in their free time by using such postings as evidence to justify termination.
In Lougheed Imports Ltd. v. U.F.C.W., Local 1518, the British Columbia Labour Relations Board found that the employer, an automotive detailing and accessory shop, had proper cause to dismiss two employees for comments they had made about their employer on Facebook. The postings included “very offensive, insulting and disrespectful comments about supervisors or managers,” “clearly identified and referenced discipline (the employee) received at work” and also contained “damaging comments about the employer’s business.”
The board found the employees “could not have a serious expectation of privacy when publishing comments on their Facebook websites and therefore the comments are damaging to the employer’s business.”
In Groves v. Cargojet Holdings Ltd., the adjudicator similarly found the employee had “seriously maligned her employer (by) posting insulting, threatening comments about her supervisor, her fellow employees and her workplace on Facebook.”
Any reasonable person reading those remarks “would interpret them as offensive, disloyal and insubordinate,” said the adjudicator. Under the circumstances, the employer had just cause to impose discipline.
However, termination was an excessive disciplinary response in consideration of the “evidence overall and the mitigating factors,” said the adjudicator.
The mitigating factors, which the adjudicator also referred to in distinguishing Groves from Lougheed, included the “provocation caused by events at the workplace, the absence of appropriate measures taken by her employer when faced with her complaints of harassment, the differential treatment for similar infractions committed by other employees, the transitory nature of her conduct compared to similar cases, the fact the offence was not committed at the workplace and therefore did not breach the workplace violence prevention policy, the nature of Facebook postings compared to website blogs which gave rise to more severe discipline in other cases, and the minimal harm to the employer’s reputation.”
It is becoming more common for employers to implement social media policies that set out clearly articulated rules and expectations with respect to employees’ use of social media. These policies should remind the employee of her implied duty of good faith and loyalty to the employer, and warn that postings on social media sites that undermine this may be used as evidence to support discipline up to and including termination of employment.
The policy should also remind employees that information posted on blogs and Facebook, and other social networking sites, is often publicly available and may therefore be accessed by the employer, co-workers and customers.
For more information see:
• Lougheed Imports Ltd. v. U.F.C.W., Local 1518, 2010 CarswellBC 3021 (B.C. Lab. Rel. Bd.).
• Groves v. Cargojet Holdings Ltd., 2011 CarswellNat 3422 (Can. Arb. Bd.).
Tim Mitchell is a partner at Norton Rose in Calgary. He can be reached at (403) 233-0050 or firstname.lastname@example.org.