Dealing with the social media monster (Guest commentary)

Off-duty conduct that hurts employers a grey area causing headaches for HR
By Vita Lobo
|Canadian HR Reporter|Last Updated: 06/02/2009

Water-cooler gossip, lunch break chats and informal conversations with co-workers: That’s how social networking in the workplace used to work. But the Internet changed everything.

Sites such as Facebook, YouTube and Twitter have completely rewritten the rules. While social media in the workplace is still in its infancy, the rate at which it is escalating is phenomenal. Facebook has about 80 million users, of which 8.8 million are Canadian. This widespread audience can have a significant impact — both useful and damaging — on employees and employers. Personal blogs have also become a common tool, usually created to keep in contact with family and friends and, in many cases, colleagues at work.

Consequences of social media

There are serious issues surrounding employees’ use of social networking websites. While companies may have clear policies governing Internet and computer usage at work, it is much less common for a company to have a policy on personal computer use at home.

Depending on what’s posted online, it could constitute workplace discrimination, bullying or harassment. Employees could also — accidentally or intentionally — divulge confidential information about a company, such as financial information or new product information, which could negatively impact the business.

Understanding employer,employee rights

HR professionals need to be aware of these new challenges and understand the rights of employees and employers regarding the use of electronic social networking. For example: What are the limits to employee freedoms? Can an employee be disciplined or dismissed for “improper” use of the Internet? And what constitutes grounds for discipline and dismissal?

It is HR’s role to identify and understand the issues and challenges that can arise in the context of electronic social networking among employees.

Disciplining off-duty conduct

One grey area employers face is to what extent they can hold an employee responsible for online conduct that occurs after hours on a personal computer.

On the face of it, it would seem impossible to hold an employee responsible for such conduct. After all, what an employee does in his spare time out of the office is of no concern to the employer, right? Not always. Off-duty conduct can, and has, come into play when it comes to disciplining and terminating workers.

The basic rule of thumb is an employer has no authority over what employees do once they’re off the clock — unless the employer can show its legitimate business interests are affected. Therefore, HR needs to understand the limits of freedom of expression when it comes to employee postings about the organization, management and co-workers.

Consider the following hypothetical scenario: Joe had a bad day at work. He was passed over for a promotion and, therefore, was annoyed. That evening, he posted a lengthy blog on his personal website. The blog discussed his feelings and how his boss mistreated him by failing to give him the promotion. It went on to suggest his colleague was given the promotion for political reasons. Joe’s blog is accessible to anyone surfing the Internet. The next day, Joe’s boss tells him he is being let go for damaging the boss’s reputation and the organization’s reputation. Does Joe have a case against his employer? Should Joe have been dismissed for his Internet conduct outside of work hours?

This scenario raises a number of issues: What are the consequences, if any, for employees who post negative comments, gossip and offensive material online and who allow it to be accessible to employees, family, friends or the general public? How much freedom of expression are employees entitled to when it comes to discussing work-related issues? Is a negative personal blog about a boss slander? Do the disciplines imposed differ within unionized and non-unionized workplaces?

Lessons from arbitration rulings

There are myriad important questions that arise. Perhaps the best way to answer some of them is to look at decisions involving employees and employers in similar situations.

One case that is pertinent to the use of social media outside the workplace is Chatham-Kent (Municipality) v. Clarke. An employee who worked as a personal caregiver at the Home for the Aged, a retirement facility in Southwestern Ontario, set up a personal blog that was accessible to the public.

On her blog, the employee criticized management and her co-workers. The blog also contained inappropriate comments, confidential information and medical data about some of the residents. When the employer found out about the blog, the worker was fired.

The employee grieved the termination but the grievance was dismissed on the grounds of a breach of confidentiality, insubordination and conduct damaging to the employer’s interest.

This decision shows workers have a responsibility to respect workplace confidentiality and not damage the employer’s reputation.

A second case that deals with potentially harmful online conduct occurring outside the workplace is EV Logistics v RWU. In that case, the worker — a 22-year-old employee of EV Logistics — posted racist, violent and disturbing comments on his personal blog.

The entries celebrated Nazism, referred to extreme violence and targeted ethnic minorities. The entries on the blog clearly identified his employer and he was fired. The employer claimed the worker’s conduct was particularly harmful because of the Internet’s far reach.

In considering the gravity of the offence, the arbitrator took into consideration the age, inexperience, family history and health of the worker. In this case, the arbitrator reinstated the worker because his off-duty conduct was not specifically directed at the employer, nor were the attacks directed specifically at individual employees or customers.

While the ruling was favourable to the employee, the case nonetheless raises an important cautionary note for employees. Online behaviour that reflects poorly on an employee can also reflect poorly on a company. Though the blog did not raise concerns of breach of confidentiality or insubordination, and though the arbitrator ruled in favour of the worker, it was nevertheless potentially harmful to the employer.

There have been other cases where an employee was not as successful in defending her rights. One case that grabbed headlines involved a Delta Airlines flight attendant who was fired because of her personal blog. She posted pictures of herself in a Delta Airlines uniform and the pictures were considered inappropriate by her employer.

In another case, a woman was fired for complaining about her job on her personal blog called dooce.com. This firing created a new word — “dooced” — which means to be fired for blogging about work.

There are numerous cases of employees being fired for online misconduct — though HR departments on this side of the border would be wise to remember that high-profile firings upheld in the United States may not stand up to the scrutiny of Canadian courts.

Tips for employers, employees

Employers need to set out clear policies and guidelines when it comes to the use of social media, both inside and outside of work. The policy needs to be well-communicated and employees need to be clearly told of the ramifications of violating the policy. Employers should also be vigilant and consistent when enforcing these policies and guidelines.

Employees need to get the message that posting information about their employer can have serious consequences, including the employer’s legal right to discipline. Among the concerns that should be communicated are: disclosure of confidential information; disparaging statements about the employer or employees; harassment; and anything that could damage the company’s reputation.

Employees should recognize information posted online is a permanent record and could be read by the public. In general, a good rule of thumb may be: “Don’t put anything in writing that you are not willing to say face to face.” Finally, employees need to be aware their online conduct during work hours may be monitored.

Vita Lobo is a personnel manager at the School of Administrative Studies at York University in Toronto. She can be reached at (416) 736-2100 ext. 22268 or vitalobo@yorku.ca.

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