Facebook controversy arises in workplaces

Recent ban of website in Ontario ­government offices highlights employer concerns

On May 2, 2007, the government of Ontario barred its employees from access to Facebook, the popular social networking site originally launched for Harvard University in February 2004, sparking international attention from employees and employers regarding the scope of employer control over Internet access in the workplace. The barring of access to Facebook has raised important issues regarding the extent to which an employer can reasonably restrict their employees’ use of the internet while at work. Are employers within legal rights to ban access to Facebook, and similar sites, from the workplace?

The backlash against Facebook is largely due to a concern over derogatory comments and a decrease in workplace productivity, which are both valid concerns for employers. There are currently 21 million Facebook users worldwide, and Canadians spend on average of 29.6 minutes per day on the social networking site, according to its marketing staff. Its increasing popularity among employees and employers alike is a cause for concern and is likely one of the primary reasons for the Ontario government’s ban of Facebook over another less popular social networking site called MySpace. Companies are entitled to establish ground rules to regulate employee behaviour, including use of company electronic media equipment to ensure such equipment is not used to damage the employer’s reputation, and guard against time theft or excessive personal use.

The City of Toronto has also followed the province’s lead in blocking employees’ access to Facebook, except those in the offices of the mayor and the city’s 44 councillors. According to city agencies, the reasoning behind this ban is because Facebook has little relevance to municipal work. For Ontario government employees, including MPPs and cabinet ministers, and Toronto municipal employees, Facebook joins the likes of other forbidden sites dealing with pornography, gambling and dating as well as YouTube, a free video viewing website.

Courts view an employee’s use of the Internet in the workplace as use of corporate assets, which should be used for business purposes. Personal use of the Internet while at work need not only include accessing or distributing inappropriate material in order to warrant a ban of a particular website and disciplinary measures. It can also include excessive use, which can lead to “cyber-slacking” – employees who spend their time doing anything but working and therefore abusing company time and money.

One of the most egregious examples of an employee’s excessive use was illustrated in the 2000 case of Syndicate Canadien des Communications, de l’energie et du papier, section local 522 c. CAE Electronic Itee (grief de Petruzzi), where the arbitrator concluded the employee committed time theft and upheld the employer’s decision to terminate the employee. The employer found during the four-and-a- half month span in which the employee claimed about 480 hours of overtime, he had also spent about 300 hours on the Internet. According to the arbitrator, the actual content of information the employee accessed was irrelevant. Rather, it was the amount of time wasted along with the employee’s claim for overtime that justified disciplinary action and termination. Where employees overuse their Internet privileges while at work and waste company time, resources and productivity, employers are justified in taking disciplinary action. Dismissal, however, should be viewed as a last resort and for extreme cases of employee abuse of company assets.

There are also matters of policy at play. Premier Dalton McGuinty indicated the Government does not view Facebook as adding value to the workplace, but Facebook proponents argue the Ontario government’s decision to ban access to the website further isolates it from the public it serves. In banning a site from access by employees, employers must bear in mind the potential usefulness of certain Internet sites with respect to their company’s productivity and capital gain. The bottom line for employers, however, is the importance of producing and consistently enforcing a workplace Internet policy, which must clearly address the following:
• the amount of reasonable time employees can spend using company equipment to access non-work related websites;
• whether an employer has the right to ban a website altogether;
• whether employees’ Internet access privileges can be revoked or limited at any time; and
• the type of Internet access on company equipment which is strictly forbidden, such as time theft or excessive use, pornography and employee blogs containing defamatory content about the company.

Since employers have control over company assets, and Internet access on workplace computers is deemed to be a use of company assets, then it is only reasonable Internet access to Facebook should fall under the control of employers. Employers should, ideally, have discretion to limit or revoke access to sites such as Facebook At present, the Ontario government can revoke or limit its employees’ Internet privileges.

Non-work related internet privileges should have higher scrutiny in government offices than in private enterpises because, in addition to wasting the government’s assets, activities such as employees’ use of Facebook amounts to time wasted at the expense of the taxpayer.

Employers can strengthen their ability to control assets, such as access to the Internet at the workplace, by clearly and expressly indicating in company policy they have the right to revoke, limit and regulate workplace Internet privileges. In addition, the restrictions noted within the policy should be implemented and enforced on a consistent basis.

As a result of the Facebook ban by the Ontario government and the City of Toronto, employees in private enterprises may soon find an “access denied” message on their computer monitors similar to the one the government and city employees received. It is at the discretion of the employer to determine whether certain employee Internet access privileges are appropriate for their workplace. There is nothing wrong with sharing information via Facebook or other social-networking sites, but not on company time, with the use of company assets and at the expense of the employer.

Ronald S. Minken is a senior lawyer at Minken & Associates P.C., an employment law boutique located in Markham, Ontario. He can be reached at (905) 477-7011 or rminken@minken.com. Ronald gratefully acknowledges Andrea Lim for her assistance in preparing this article.

Employers differ on Facebook usefulness

Facebook is now on par with online gambling sites, pornographic sites and YouTube in Ontario government offices. Employees attempting to access Facebook will get the same message as if accessing those other sites: "The Internet website that you have requested has been deemed unacceptable for use for government business purposes." The ban applies to all government workers from office employees to MPPs to cabinet ministers. However, similar but not quite as popular website MySpace hasn’t been banned as of yet.

There are about 2 million Facebook users in Canada, with 500,000 of them in Toronto. The number of users is growing by 5 per cent a week and the average user spends about a half-hour a day on the site.

Some employers, such as Toronto-Dominion Bank, also ban the site from office computers. However, others feel it can be a useful tool for business networking. In the federal government, some departments, but not all, ban access to the site.

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