Employers caught in a tangled Web 2.0

The popularity of social networking sites and blogs is bleeding into the workplace, raising productivity and security concerns

Web 2.0 can hurt budget, security and image

The term “Web 2.0” refers to the trend of web-based communities focused on collaboration and sharing among users, such as social networking sites. Popular Web 2.0 favourites such as MySpace, Facebook and blogs, have revolutionized the Internet. More than ever before, individuals are eager to carve out a space for themselves online and put their thoughts and opinions to family, friends or even the public at large.

However, Web. 2.0 is costing companies hundreds of millions of dollars in productivity. A September 2007 BBC News study, for example, estimated Facebook alone costs U.K. employers about $260 million Cdn a year in lost productivity. It’s also raising the stakes for managing trade secrets and confidential information.

In addition, this phenomenon has resulted in a paradigm-shift in the world of marketing: Carefully polished brand images and reputations are now regularly tarnished by front-line employees who make Internet posts — and the news. Web 2.0 is fast becoming a new legal battleground between employers and employees.

The widespread use of social networking sites and blogs has inevitably overlapped into the workplace as employees access and post on these sites from and about work. Employers and the courts are still developing ways to handle the work-related indiscretions that can result.

In January 2007, several employees of grocery chain Farm Boy were dismissed after making posts about the Ottawa grocery chain on one of several Facebook forums, or “groups,” dedicated to discussing the employer. One such group, called “I got Farm Boy’d,” was identified by the group administrator as a forum “for current and past employees of Farm Boy to share experiences, discuss topics and even have a place to express opinion as guaranteed under the Canadian Charter of Rights and Freedoms.” One employee was fired for admitting theft in a posting and at least one other employee alleged he was terminated for his participation in the group.

More recent examples include a Tim Hortons Facebook group created for every employee “who gets fed up with (customers) who don’t know what they want, and for workers who have to put up with this every day” and a group of Dairy Queen employees which contained, among other things, a video of an employee dropping his pants in the drive-through window.

Microsoft, Google, and Delta Airlines are other employers who have terminated American employees for posts on Web 2.0 sites.

The limits of discipline: What should employers accept?

Jurisprudence on Web 2.0 in the employment context has only begun to develop. However, employers can take solace from case law in other areas that indicates certain behaviour on Web 2.0 will not be tolerated by adjudicators.

Wasting hours on employers’ equipment will be justifiable grounds for progressive discipline and eventual termination. Harassment of co-workers online will likely be seen as no different than harassment by phone or e-mail. Personal attacks against co-workers online that make working with colleagues impossible may warrant termination for cause and posting defamatory material about employers on Web 2.0 will be just as actionable as posting material on other Internet sites.

The case of Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 217 (Clarke Grievance), confirms that posting confidential information online can be grounds for termination.

However, it appears it will be difficult for employers to justify terminating employees who gripe about their employer or supervisors online. Termination for insolence online may only be warranted if an employee makes comments which are found to be so irreverent as to undermine management’s ability to effectively supervise the workforce. Case law in other contexts indicates an employer should look to both how damaging the comments were and the audience to which the comments were directed.

Employers will also have difficulty disciplining or terminating employees who conduct themselves in an unsavoury way online while identifying themselves with the company. Employers are not considered “custodians” of employees’ private lives. Generally speaking, a dismissal will not be upheld unless the employer can establish the online conduct of an employee seriously damages the company’s reputation or the ability of the employee to perform his job.

It is worth noting, however, that employers may more easily justify the dismissal of an employee for embarrassing or criminal behaviour online if the employee, by virtue of his position or responsibilities, must maintain an appropriate image in order to perform assigned duties and be of continuing benefit to the company, as in Pliniussen v. University of Western Ontario, where the dismissal of a finance professor was upheld because it was found that the faculty’s reputation would have been damaged had it continued to employ him.

What’s an employer to do?

On-duty Web 2.0 use. Blocker software remains the most effective and cost-efficient method of reducing unauthorized Internet use at work. It typically prevents employees from accessing certain categories of sites such as gambling, pornographic and social networking. Blocker software is widely used by employers and there appears to be no case law that would prevent an employer from prohibiting certain uses of their own equipment by employees on company time.

Off-duty Web 2.0 use. A good first step for employers is to engage in a dialogue with employees about the dangers Web 2.0 presents to employers and employees. Many employees are unaware writing about work on these types of websites could impact their careers, or mistakenly believe writing anonymously or omitting the names will prevent discipline or legal action. Others may think posting confidential or damaging information on blogs or social networking sites is fundamentally different from leaking information to a newspaper, television program or competitor.

Employers should also consider putting Internet policies, including a Web 2.0 policy, in place. This will help ensure all employees are formally notified that using Web 2.0 sites matters and provide an employer with additional protection should the employer choose to pursue progressive discipline or termination. A Web 2.0 policy, like all policies, should be unambiguous, in writing and disseminated throughout the workforce. All new employees should have the policy included in their employment contract and adherence made a condition of employment.

The future of Web 2.0

Employers who seek creative solutions to the issues of Web 2.0 today will be better equipped to face the challenges of tomorrow. For the tech-savvy younger generation who have grown up with computers, Web 2.0 is an essential element of social life and posts or discussions on its websites are often perceived as conversations or commentary made within the private sphere. As this generation enters the workforce — and become arbitrators and judges — employers may have an increasingly difficult time disciplining, terminating, or suing employees for what they view as Web 2.0 indiscretions.

For more information see:

Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) Local 127 (Clarke Grievance) (2007), D.R. Williamson-Arb. (Ont. Lab. Arb. Bd.).

Pliniussen v. University of Western Ontario, 1983 CarswellOnt 754 (Ont. Co. Ct.).

Mary Gleason is a partner with the labour and employment group at Ogilvy Renault’s Ottawa office. She can be reached at (613) 780-8635 or [email protected]. Anthony Moffatt is a lawyer with the labour and employment group at Ogilvy Renault’s Ottawa office. He can be reached at (613) 780-1546 or [email protected].

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