Balancing risks, benefits of social media

Recent arbitration rulings define legal boundaries
By Madeleine Loewenberg
|Canadian HR Reporter|Last Updated: 01/31/2011

The debate over the use of social media in the workplace is becoming ever more prevalent.

On the one hand, the use of social media can result in tangible benefits to an organization. Social media pages are regularly used to inform potential consumers about products and services. Advertising can be targeted to an online demographic and is often disseminated amongst social media users who can repost content on their personal sites.

On the other hand, social media can hamper the effective operation of a workplace. Employers have concerns about productivity and the security of computer systems when employees access social media at work. Employers are also concerned employees will criticize products and services or discriminate against or disparage co-workers or clients.

Two recent arbitration decisions highlight the risks social media poses for employers. They also demonstrate the limits that will be placed on the ability of employees to make disparaging remarks about their employer and its products, employees and customers.

In Lougheed Imports Ltd. (c.o.b. West Coast Mazda), the British Columbia Labour Relations Board upheld the termination of two employees who used Facebook to make threatening and homophobic comments about their supervisor and who disparaged the employer’s products and services. The fact the comments were made outside of work and from home computers was irrelevant to the board.

It rejected the employees’ claims they were targeted by their employer because they had recently assisted in the unionization of the workplace. The board was also unsympathetic to any argument the privacy of employees was violated or their Facebook activity was “tracked” without warning that inappropriate posts may result in their termination.

“The comments… were damaging comments about the employer’s business, such as ‘Don’t spend your money at West Coast Mazda as they are crooks out to hose you and the shop ripped off a bunch of people I know,’” said the board. “These Facebook comments were made to either almost 100 or 377 people, including employees. I find, based on those facts… that 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.”

The comments about supervisors added up to “insubordination… as they are used as a verbal weapon to degrade a supervisor in front of others,” said the board.

Instrumental in the board’s finding the dealership acted appropriately was the fact the employer offered both employees the opportunity to explain their actions in an effort to investigate the facts leading to the offensive postings prior to terminating their employment.

In Wasaya Airways LP and A.L.P.A., an Ontario pilot was terminated after he made ill-advised comments about First Nations people on his Facebook page. The airline for which the pilot worked was owned and operated by First Nations persons and operated largely within the First Nations communities.

Wasaya was aware of previous incidents where First Nations communities had refused to deal with individuals who had shown disrespect to their culture. As a result, the airline was found to be genuinely concerned members of the community would boycott it if information about the Facebook postings was disclosed publicly.

By contrast, the pilot was remorseful. Further, he posted the comments while off-duty and the comments were limited to a single posting. In light of these facts, the arbitrator hearing the grievance substituted the termination of the pilot for a lengthy suspension and the requirement the pilot resign his employment.

Despite the substitution of the penalty, the arbitrator was clear the pilot’s actions were unacceptable. Of specific concern was the fact the comments were viewed publicly, they could have damaged the employer’s reputation and they breached human rights legislation. In respect of the public nature of the comments, the arbitrator stated: “Where the Internet is used to display commentary or opinion, the individual doing so must be assumed to have known there is potential for virtually worldwide access to those statements.”

To ensure the benefits of social media do not outweigh its risks, employers should implement a clear and understandable policy that applies to communications made by employees. A properly written social media policy will provide an employee with notice of the standards expected of them. As a result, an employer that seeks to discipline an employee for breaching those standards will find its decisions subject to review less often.

At a minimum, the policy should outline:

• whether social media sites may be accessed at the workplace

• the intended purpose behind allowing access to social media at the workplace (such as to update blog content, monitor customer preferences and queries or target advertising to specific consumers)

• limits on the ability to access social media at the workplace

• limits on the type and nature of editorial content that can be left on other social media sites

• the consequences of breaching the social media policy, including possible termination in appropriate situations

• whether social networking in the workplace will be monitored.

Madeleine Loewenberg is a lawyer in the employment and labour group at Ogilvy Renault in Toronto. She can be reached at (416) 216-3932 or mloewenberg@ogilvyrenault.com.

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