Social media activity by employees

Keeping track of employee who identifies herself as an employee on social media

Question: If an employee lists herself as an employee of the company on her personal social media account, does the employer have any right to monitor the employee’s online activity or request certain standards to be maintained?

Answer: The use of what is broadly defined as “social media” by employees has created new risks in the workplace. These include potential damage to a company’s reputation — where employees either casually or with intent make and post comments about the workplace, customers or suppliers), loss of confidential company information, and potential loss of productivity.

The use and control of an employee’s use of social media as it relates to employment goes beyond whether an employer can monitor an employees’ social media account and record what she is saying about the workplace. It centres around whether that conduct can be worthy of discipline, despite the fact that it can be done on the employee’s own time.

In a recent Alberta case, a Canada Post employee was terminated as a result of vengeful and hateful posts on her Facebook page which referred to Canada Post management. A grievance by the union to reinstate the employee was dismissed by an arbitrator on the basis that such posts were inconsistent with a continued employment relationship.

Monitoring employee social media conduct raises two issues: what is permissible for employees to say via social media, and what does an employer do if an employee crosses the line with her comments? To address permissible conduct, employers have the right to ask that certain standards be maintained. In fact, employers are wise to create and implement a social media policy which explicitly sets out what can and can’t be said. It should explain the company’s approach to social media, remind employees of the nature and impact of what they publish, specifically prohibit speaking on behalf of the company without authorization, and warn that the use of social media will be monitored and the information collected may be used and disclosed for legitimate business purposes, including to investigate suspected breaches of the law or workplace policies.

Where an employee posts comments or information which may be deemed to harm the company’s reputation or product, this use will be viewed as “off-duty conduct.” To determine whether it can result in discipline, courts and administrative tribunals look at a number of factors, including whether the conduct rendered the employee unable to perform her duties, whether it led to the refusal or reluctance by other employees to work with the employee, whether there is a criminal code offence concerning the conduct and whether the conduct makes it difficult for the company to manage its workforce efficiently.

As difficult as it may seem to keep up with the pace of technology, it’s important to remember that employers can still use vigilance and good old fashion policies and procedures to deal with the issues arising in the new workplace.

Lorenzo Lisi practices employment and labour law with Aird & Berlis LLP in Toronto. Aird & Berlis can be reached at (416) 863-1500 or by visiting www.airdberlis.com.

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