Social media policies: What works best in light of case law?

A look at some notable cases with key implications for employers

The use of social media in the workplace has exploded in recent years — and employers are struggling to keep up. It’s not surprising, given the easier access to the Internet, the persistent popularity of mobile devices and the introduction of new social media outlets. 

A look back at notable Canadian decisions and events demonstrates the need for both employees and employers to understand how social media use fits into traditional employment and labour concepts. Social media policies need to be integrated into companies’ existing policies on protection of privacy and confidential information, workplace safety, conduct in the workplace and discipline.

Notable cases

In the 2011 Lougheed Imports Ltd. (c.o.b. West Coast Mazda) and UFCW Local 1518, two B.C. employees of West Coast Mazda were terminated after making Facebook postings described as “offensive, insulting and disrespectful.” 

The union filed unfair labour practice complaints with the British Columbia Labour Relations Board, alleging the employer had no just cause for the terminations. The board dismissed the complaints, finding that “(t)he fact that the complainants had no previous discipline and the employer knew they were key supporters of the union does not outweigh the fact that the employer had never encountered similar conduct, and the work offence was serious insubordination and conduct damaging to the employer’s reputation.” 

The vice-chair relied on the Ontario decision in the 2009 Leduc v. Roman and determined the employees could not have an expectation of privacy as Facebook postings were “akin to comments made on the shop floor.”

The demarcation between professional and personal online identity has shifted in favour of companies maintaining a competitive edge, in an ever-evolving media landscape. In lieu of strong policies regarding social media use, companies are at risk of sacrificing professional identity to the personalities that fuel it.    

In the 2014 Kim v International Triathlon Union, a former communications manager brought a wrongful dismissal action against her employer, a triathlon governing body. The manager was terminated with two weeks’ notice pay for multiple issues, including remarks made over the course of multiple tweets and a particularly damaging blog entry. In her position, the manager’s social media postings were found to be critical to athletes and triathlon officials.

In the aftermath of a dispute with her employer, the manager made disparaging remarks on her personal blog, comparing her supervisor to her own mother, whom she felt similarly mistreated by. It was claimed these derogatory and defamatory comments about management on social media amounted to “conduct which was reprehensible given the plaintiff’s position of senior communications manager.” 

To the detriment of the employer, the blog incident was not pleaded in support of an allegation of cause, but rather in response to the manager’s allegations she was terminated suddenly and without cause. While the supervisor claimed she was embarrassed by the blog post, she did not state the employment relationship could not continue after the blog post. 

Also at issue was the lack of company policies on social media use and Internet use, and that the manager claimed she never saw an employee handbook. Further, she was “encouraged to be formal when she needed to be” but otherwise her style was casual and informal. While the supervisor claimed the communication style at issue was discussed with the manager, the manager insisted, and the court found, that no reasonable notice was given. 

Specifically, the court found that for over a year, no written or oral warning was given to the manager that the impugned social media posts were inappropriate and unacceptable and that her employment was in jeopardy should she not cease and desist from such performance. 

Even more troubling — the manager received an increase in her compensation and was permitted to continue in her position even after the blog post. 

For these reasons, the court found the manager never received an “express and clear” warning about her performance relating to the social media posts and a reasonable opportunity to improve her performance after warning her.

In a different B.C. case, EV Logistics v. Retail Wholesale Union, Local 580 (Discharge Grievance) in 2008, the employee was discharged because of his blog which contained violent fantasies and racist comments. The blog also identified the company as the blogger’s employer.

The union argued the postings on the blog occurred entirely off-duty and there was no connection between the business interests of the employer and the employee’s conduct.

While the arbitrator held that there was a connection between the blogging and the business interests of the company, sufficient mitigating factors existed to justify a reduction in the disciplinary penalty of discharge and the grievor was reinstated without compensation.

In the 2007 Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127 (Clarke Grievance), an Ontario employee was dismissed for breach of the confidentiality agreement, insubordination and conduct unbefitting a personal caregiver because of her blog. The employee posted comments about her employer and the conditions in the retirement home as well as personal information about the residents in the retirement home without their consent. 

The union argued the discipline was excessive. But in dismissing the grievance, the arbitrator held that the blog comments were insolent, disrespectful and contemptuous of management and were an attempt to undermine management’s reputation and authority. The grievor also breached the employer’s confidentiality agreement by disclosing the personal information of residents on a website she created that was accessible by the general public. 

The framework emerging from the cases reviewed above was confirmed by the 2010 decision Wasaya Airways LP v. Air Line Pilots Assn., International. An airline pilot with a company owned by a number of First Nations was discharged after posting “extremely serious, offensive and derogatory comments regarding the company’s owners and customers” on Facebook. The pilots’ union argued the discipline was excessive. 

The arbitrator cited Chatham-Kent for the proposition that “where the Internet is used to display commentary or opinion, the individual doing so must be assumed to have known that there is potential for virtually worldwide access to those statements.” The arbitrator concluded that while the grievor’s misconduct was deserving of a penalty, the postings were meant to be humorous and there were mitigating factors.

The arbitrator further noted the grievor would be unable to work effectively as a pilot with the airline’s owners or customers given the nature of the posting and ordered that a four-month suspension with compensation be substituted for the discharge, provided the grievor resign.

An employer has an interest in preventing social media postings that disclose a toxic work environment, even outside of the confines of the office. In the labour arbitration decision of United Steelworkers of America, Local 9548 v. Tenaris Algoma Tubes Inc., an employee posting sexually charged and harassing comments of another employee on Facebook warranted summary dismissal. Following the end of a shift, the grievor posted a complaint about his co-worker, without naming her, but with enough description to warrant the attention of other employees and, ultimately, management. The comment escalated into an hours-long string of comments. When confronted by management, the grievor apologized and deleted the impugned posts.

The company immediately terminated the grievor’s employment citing the Facebook posts that had come to their attention through a complaint of harassment. The company took issue with the public nature of the posts. In response, the union posited the company’s harassment policy requires the person being harassed to ask the harasser to stop, and the grievor was not afforded this opportunity. As well, the union asserted little damage was caused by not asserting the employee’s name in the post and the chances of the two employees working together again could be avoided in the future. 

Nevertheless, the arbitrator found that the harm caused by the public nature of the post, and the distinctive way the employee was targeted, were insurmountable. On the issue that workplace policies did not speak to Facebook use specifically, the arbitrator opined, “Facebook... is an act of publicity” and “it is obvious that the policies would include threats and harassment via Facebook and that discharge is a potential response to threats or harassment.” 

As such, the company is held responsible under the Ontario Human Rights Code, the Ontario Occupational Health and Safety Act and the collective agreement for maintaining a workplace free of harassment, and so the grievance was denied.
More recently in the 2012 Bell Technical Solutions v. Communications, Energy and Paperworkers Union of Canada, two employees were discharged and another suspended because of pictures and comments they posted on Facebook that amounted to offensive malicious ridicule of the employer and harassment of a manager. 

Citing EV Logistics, Chatham-Kent, Wasaya Airways and other cases, the arbitrator stated, “It is well-established that inappropriate Facebook postings can result in discipline or discharge, depending upon the severity of the postings.”

To determine how insolent, insulting, insubordinate or damaging the postings were to the company and the manager, the arbitrator considered such factors as the nature and frequency of the Facebook postings, whether the postings were deliberate or “a momentary aberration” and how public they were in terms of the number of Facebook friends the employees had and the likelihood of their seeing the postings. 

After assessing these factors the arbitrator reinstated one of the two discharged employees subject to a one-year suspension without pay, while upholding the discipline received by the other two employees. 

Creating a policy
When creating a social media policy, there is no one-size-fits-all plan but here are some tips on how to create an efficient and effective social media policy:

• Involve all departments. IT, HR, public relations/marketing and corporate managers and executives should all work together to create a policy that works for everyone.

• Be broad enough to cover social media technology that will be introduced in the future. Furthermore, the policy should not only cover the material on the company blog, or company Facebook or Twitter account, but should also cover the appropriate use of a personal blog, Facebook page or Twitter account. It must also be clear the policy is not restricted to use from work computers and applies to the use of social media on employee time.

• Implement a positive social media policy. Recognizing the pervasiveness of new technologies and allowing access to social media in moderation could be the answer so long as it does not affect productivity and the company is protected. 

• Employees should be kept informed about the legal and security risks involved in social networking and what they can do to protect themselves and the company. Emphasize the need to use caution and good judgment as comments posted on social networking sites can spread despite the original posting being removed. It is important to encourage employees to use a disclaimer that the opinions expressed are not those of the company. 

• Define what is and is not considered “acceptable use” both on the company’s network and outside of it. It should be clear that company systems may not be used for illegal activity such as copyright or plagiarism and downloading pirated software.

• The policy and its enforcement should be clear to all employees. It is important to clarify what disciplinary action will be taken, up to and including termination, if policies are not followed.

• The policy should be written and it is a good idea to have employees sign off on it or track acceptance or receipt to ensure they have read its contents.

• The policy should be simple and accessible — employees will not be inclined to read through an overwhelming manual. Circulate the policy regularly and have it readily available both electronically and in hard copy.

George Waggott is co-chair of the employment & labour group at McMillan in Toronto. Chandra Ewing is a student-at-law at McMillan. George can be contacted at [email protected] or (416) 307-4221.

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