Delicate balance between employee privacy and employer's right to protect its reputation
Question: If we’re unhappy with some of the things an employee is posting on Facebook and Twitter, what can we do? The employee identifies herself as working for our organization on both sites, though they are her personal accounts.
Answer: There are several factors which come into play when an employer is trying to determine how to deal with the effects of an employee’s social networking activity on the workplace. These factors may include: Whether the employee is using the employer’s computer for the networking purposes, whether they are networking during work hours and whether the networking activity has a clear connection to a negative effect on the workplace.
Before anything can be done about the activity, a discussion needs to take place about how the information about the postings was obtained. The context in this regard can be very important.
As the case law in this area currently stands, employees may have a reasonable expectation of privacy when it comes to Internet use for personal reasons and if the information was obtained though an action which invades this privacy, then the employer may not have the ability to use it to take action against the employee.
For example, if the information about the postings was collected by surreptitiously monitoring the employee’s Internet use in the workplace, and she reasonably expected her Internet use would remain private, then action against the employee may not be permissible. The extent to which an employee may reasonably expect her Internet use and email messages will remain private will be determined by weighing the following factors:
•Whether the employer owns the hardware/software
•Whether the technology is being used during business hours
•Whether the employer has a firm policy in place regarding Internet use
•Whether the employee is aware of that policy, and the extent to which the policy is consistently enforced.
Each of these factors would have to be assessed in light of the particular employment context. The test that is generally employed to assess whether an employee’s right to privacy has been violated also involves a very contextual analysis. It is generally understood as follows:
•Was it reasonable to monitor or conduct the search?
•Was the search conducted in a reasonable manner?
•Were other alternatives open to the company to obtain the evidence it sought?
However, social networking sites such as Facebook and Twitter have very large audiences and, depending on the privacy settings of the individual user, it is possible that the account information and postings are available to the public at large — regardless of which computer was used to create them. It is also possible that the user has “friended” several other co-workers and supervisors in the same workplace. If this is the case, then the employee no longer has a reasonable expectation of privacy as she has freely made the information available to the employer.
For example, in a recent British Columbia case regarding the use of Facebook, Lougheed Imports Ltd. v. U.F.C.W., Local 1518, two employees were terminated for posting inappropriate and derogatory comments about their employer on their personal Facebook pages. They had more than 400 friends between them, including co-workers and supervisors. The employees made offensive remarks about their supervisors, accusations that the employer was out to “hose” people with their services, and even a suggestion that one way to relieve stress at work would be to go on a vigilante killing spree. The employer was made aware of these postings through the supervisors who had access to the page as “friends.” An investigation ensued and the employees were terminated for just cause.
The terminations were upheld by the B.C. Labour Relations Board, which further determined there was no reasonable expectation of privacy in this context. Because so many co-workers were “friends” and had access to the employees’ pages, the comments were akin to having been made directly on the shop floor, despite it actually happening after hours away from the workplace. The comments created a hostile work environment and damaged the reputation of the employer. Thus, there was a sufficient link between the off-duty conduct and the effect on the workplace to justify action from the employer.
This case demonstrates that where an employee is posting comments to her own private social networking account, using her own computer on her own time, the nature of the comments could turn it into a workplace issue. If so, the employer could be justified in taking action if the statements can legitimately be linked to a negative effect on the workplace. In the present case, it is important to note that the fact that the employee has identified herself as working for the employer makes it more likely that comments made will have a negative effect on the employer, depending on their content.
It is possible, however, that the employee has set her privacy settings so that her “friend” group is not sufficiently “public” in this context. In that case, employers should be aware of the restrictions on monitoring an employee’s Internet use. To address these restrictions, employers should make sure they develop, and consistently implement, a clear policy on the use of the Internet and social networking in the workplace and ensure all employees are fully aware of the policy and its implications.
For more information see:
•Lougheed Imports Ltd. v. U.F.C.W., Local 1518, 2010 CarswellBC 3021 (B.C. Lab. Rel. Bd.).
