Beware of workplace blogging

Losing productivity isn’t the only challenge faced by employers; the content of web postings can also cause problems

With the legal frontier of employee blogs no longer on the horizon, an entirely new set of workplace dangers is testing the threshold of Canadian employment laws. Just as organizations are grappling with novel workplace concerns, courts will be asked to address the legal issues as employees continue to confuse freedom of speech with freedom from workplace consequences.

In my own legal practice, I’ve come across several workplace issues relating to blogs.

It’s not just about blogs. Social networking sites such as YouTube, MySpace and Facebook allow employees to post personalized web pages in online communities, generating similar concerns for employers as a blogger does, except employees access these sites in far greater numbers. Organizations are prone to the same informational leaks and disciplinary problems that blogging creates.

Facebook, for example, encourages users to post a biography disclosing, among other details, their place of work. The website then links employees of the same organization together in an online network, where musing about the company becomes public discourse. Without any network administrator, employees can banter on about the company’s affairs, automatically placing their employer’s name beside each post. In January 2007, eastern Ontario grocery chain Farm Boy fired several employees after discovering their network where employees admitted to, among other indiscretions, theft from the company.

Many employees believe they cannot be disciplined for conduct outside of the workplace. They are mistaken. Though most blogs are created and maintained outside of working hours and on employees’ personal time, employers maintain the legal right to discipline or dismiss employees for off-duty conduct.

As a general rule, discipline is properly administered when off-duty behaviour brings an employer’s reputation into disrepute. Recently, I was consulted by an ex-employee of a large Canadian electronics retailer who was terminated for cause after his employer saw a video displaying him in his company attire improvising a scene to an action flick both inside and in front of his store. The scene had been posted on the popular video sharing website YouTube. While the law of dismissal typically requires an employer to first prove the misconduct actually occurred, the proof in this case was undeniable. Interestingly, while most wrongful dismissal cases involve factual disputes and questions of credibility, here I was able to download the video onto my laptop and contemplate with my client the possibility that a presiding judge would be asked to do the same.

An employee who reveals confidential information via a posting, or anyone inducing her to do so, is culpable of misconduct in the same manner as if that employee had e-mailed confidential information to a competitor. The ubiquity of the Internet allows blog and web postings to instantaneously disseminate information to a potentially global audience. Courts are, therefore, more likely to respect an employer’s decision to immediately fire an employee whose blog posting compromised, or potentially compromised, a competitive advantage.

Employees can be personally liable to extravagant libel-based defamation claims if postings are negligently or maliciously made. If, however, such postings occurred while the employees were carrying out the duties of their job, corporations may begin to see their names on statements of claim.

Harassing or discriminatory blog or web postings are likely cause for dismissal, and employers may be vicariously liable if they fail to prevent workplace harassment. Two British Columbia employees of aeronautics giant MacDonald Dettwiler were fired for distributing a vulgar e-mail at work that detailed the sexual gymnastics of an overweight female co-worker. They viewed it as a prank, but it had a significant effect on the co-worker’s ability to perform her job in that environment.

The relative ease with which blog and web entries are created, disseminated and maintained means the evidence is unlikely to ever disappear. Postings of jokes, pictures or stories can, therefore, be traced back to their originators, even years later, and although references to blog postings as evidence in a wrongful dismissal trial have yet to become common, this practice will become the custom in the same manner as e-mails have.

Time theft. Wasteful periods during working hours amount to “theft of time” and can, in appropriate circumstances, be cause for dismissal.

Employees making unsavoury blog or web entries don’t just face the risk of work-related discipline. Some postings can violate criminal standards, such as hate propaganda or obscenity laws. In these cases, guilty employees stand to lose more than just their job; their liberty is on trial as well. Recently, in R. v. Walkem, an Ontario Superior Court judge accepted, as an aggravating sentencing factor, evidence of the accused’s sexual exploitations he had posted on his personal blog.

Web postings affect employers in more ways than just discipline

In both unionized and non-unionized organizations, bloggers who can demonstrate they are communicating with other employees about working conditions or potential unionization may warrant protection under the unfair labour practice provisions of labour relations legislation, as employers are prevented from interfering with the formation or administration of trade unions. Employees would be wise to argue an anti-union animus was the impetus behind disciplinary action based on blogs or networks.

In light of these challenges, here’s what employers should do:

Keep assets in-house. Corporations spend millions of dollars protecting brands and proprietary materials. Without vigilance, employers are gambling with the risk of eventually losing a legal right to that property. Employers should create a bulletproof blogging policy and ensure it is properly distributed, maintained and enforced. Not only will employers avoid the drama and costs of protracted litigation, but employees, when well aware of the boundaries and the consequences of overstepping them, are less likely to cross that line.

Draft comprehensive employment contracts. Prepare employment contracts that specifically define the violation of blog or Internet policies as cause for dismissal. Even if a judge may ultimately disagree, the employee will be dissuaded from waging a legal war with favourable contractual language in the employer’s corner.

Consider workplace training. Employers should educate employees about the perils of their communications rather than waiting to respond once it is too late.

For more information see:

R v. Walkem, 2007 CarswellOnt 247 (Ont. S.C.J.).

Di Vito v. MacDonald Dettwiler & Associates, 1996 CarswellBC 1525 (B.C. S.C.).

Daniel A. Lublin is a Toronto Employment Lawyer, specializing in the law of wrongful dismissal. He can be reached at (416) 640-1583 or [email protected] You can visit his firm’s website at

Blogs, e-mails and web postings can be used against offenders

Two cases demonstrate how a simple electronic message in a blog or e-mail can come back to haunt its creator, who can be held accountable.

Back in 1996, the British Columbia Supreme Court ruled two employees of MacDonald Dettwiler & Associates Ltd. were dismissed with just cause because an e-mail joke they circulated was considered sexual harrassment of another employee. The explicit joke made fun of an overweight female co-worker. It was circulated to several people, printed out and posted on the company bulletin board.
The court found the joke was offensive and humilating to the co-worker.

“The fact that it was delivered to other employees and then posted on a company bulletin board, turned the matter into public harassment,” the court said.

More recently, in January 2007, Vincent Walkem was found guilty of aggravated sexual assault of two women who he had unprotected sex with. In reaching its decision, the Ontario Superior Court of Justice used Walkem’s blog postings about his encounters as evidence in considering the severity of the sentence.

The court found Walkem’s blog “demonstrated a lack of even a modicum of insight into the manner in which his actions effect and affected others,” which served as aggravating factors in his sentencing.

Latest stories