Social media and the workplace

School scandal or none of board’s concern?

In the connected workplace, it can be difficult to completely shut out the larger wired world. Social media has become ubiquitous everywhere, including inside the workplace. In fact, many employers are using it to their advantage with internal social media networks with which ideas can be exchanged and employees can air their concerns.

However, social media has opened up aspects of people’s lives to more scrutiny and it can be hard to separate work and private lives. There have been recent cases where employees have blurred the line between what is appropriate for work and leisure time and faced the consequences. Employers have also been blurring the line, accessing information online about potential and current employees.

Employment lawyer Trevor Lawson discusses the impact of social media on workplaces and what it means in context of the rights and practices of employers and employees alike.

The last decade has witnessed the rapid expansion of social media, social networking sites and blogs, including Facebook, MySpace and Twitter, to name but a few. Recent statistics indicate nine out of 10 young Canadians regularly use social media to post images and information about themselves and others. The workplace has not been immune to this phenomenon. A recent decision by the Toronto Police Service to deny employment to would-be police officer Sean Pierson highlights both the permanence of information posted on social media and the fact that employers are using social media to obtain information on job candidates and existing employees.

Sean ‘Pimp Daddy’ Pierson

For several years, Sean Pierson made his living as a mixed martial arts fighter, competing under the name “Pimp Daddy.” Looking for a change in careers, Pierson applied for employment as an officer-in-training with Toronto Police Services. At the time, Pierson had not used his “Pimp Daddy” nickname for more than two years. Even though he had abandoned his nickname, information and images showing Pierson in his “Pimp Daddy” persona continued to be available on blogs and websites dedicated to mixed martial arts, and continue to be available to this day.

In December 2010, Toronto Police Services withdrew a conditional offer of employment it had previously extended to Pierson because, in part, of his former “Pimp Daddy” nickname and persona. In the opinion of Toronto Police Services, “Pimp Daddy” was not an appropriate nickname for a police officer, even if Pierson no longer used it. With the material posted on the Internet, Pierson had very little, if any, control over the information and images regarding his former “Pimp Daddy” persona or the ability to remove such information and images from the Internet. They will continue to be readily available on the Internet for the foreseeable future and continue to have the potential to impact Pierson’s employment prospects.

Checking out job candidates

As the Sean “Pimp Daddy” Pierson scenario demonstrates, information and images posted by an individual, or by others, on social media sites, may have an impact on her future employment prospects, whether fairly or unfairly. Many employers are now using social media to informally obtain background information on candidates for employment. An employer is under no obligation to inform a candidate or obtain consent to do so. A candidate for employment has no reasonable expectation of privacy with respect to information and images posted by or about her that are accessible by the general public — such as material not subject to security settings — on social media sites. In the event an employer discovers information or observes images that cause the employer concern with respect to the suitability of a candidate for employment, the employer may decide it does not wish to offer employment to the candidate, or to withdraw a conditional offer of employment, as Toronto Police Services did with Pierson.

An employer is generally under no obligation to advise an unsuccessful candidate for employment of the reasons she is not being offered employment. It is not unlawful for an employer to deny employment to a candidate because the employer does not like the information or images posted by or about a candidate on social media sites, unless the reason for doing so would be considered discriminatory under applicable human rights legislation — based on information or images that relate to the candidate’s race, citizenship, place of origin, sexual orientation, marital status, family status or other protected grounds.

Information on existing employees

Like candidates for employment, existing employees have no reasonable expectation of privacy with respect to information and images posted by or about that employee that are accessible by the general public on social media sites, whether during or outside working hours.

While it is clear employees can be disciplined for misconduct engaged in during working hours, activities outside of working hours are generally not considered to be relevant to their qualifications or suitability to perform the job they have been hired to do. However, an employee’s activities outside of working hours may support discipline or dismissal for cause where such activities have a negative impact on their employer’s reputation or negatively impact the employee’s ability to perform her job.

These principles apply to employees’ use (or misuse) of social media, both during and outside of working hours. The MacMillan English Dictionary has officially recognized the word “dooced,” which means to be fired because of something you have posted on an Internet blog.

The risks faced by organizations in relation to employees’ misuse of social media, both during and outside of working hours, are real and significant, and may include:

•Illegal, unauthorized or otherwise inappropriate disclosure of personal, confidential and proprietary information and images
•Inadvertent downloading of unauthorized software, such as malware and viruses and hacking into an employer’s internal computer system
•Damage to an employer’s operations and commercial reputation
•Investigations and potential liability under applicable privacy legislation
•Human rights, harassment and defamation claims against the employer.

Minimizing the risks associated with social media in the workplace

First and foremost, employers must recognize that social media is here to stay and respond accordingly. In particular, employers must take appropriate measures to minimize the risks associated with the use of social media by employees, both during and outside of working hours, and to ensure employees clearly understand the employer’s policies with respect to use of social media and the employer’s monitoring of such use.

Such measures may include:

•Implementing computer systems and protocols to block, filter and monitor use of social media in the workplace, recognizing that there may be circumstances where use of social media may be necessary or useful for legitimate business purposes
•Implementing clear written policies — for employees and third-party users, such as contractors — that define appropriate use of the organization’s email and Internet systems and of social media in the workplace. Policies should address:
•Whether computer systems (e-mail, Internet and internal networks) will be monitored
•Whether the use of social media sites is permissible, and, if so, in what context and for what purposes
•Whether social media sites will be monitored
•The prohibition of employee comments and postings on social media sites about workplace issues or that otherwise reflect negatively reflect on the employer or co-workers, both during and outside of working hours
•The consequences of non-compliance with the policy
•Training employees regarding appropriate use of computer
•Keeping up with rapidly changing technology and being prepared to amend the protocols and policies described above on a regular basis.