• Work-Related Internet Publishing by Employees: When Can an Employer Take Action?
  • December 6, 2010 | Author: Vanessa J. Paton
  • Law Firm: Stewart McKelvey - Saint John Office
  • In today’s world, with only a couple of clicks of a mouse, virtually anyone can let the world know exactly what is on their mind.  The rise of social networking, blogging and other forms of internet publishing means that anyone with an internet connection has an instant audience for their musings.

    Because it is so easy to hit that “share” button without a second thought, many people do not take the time to consider whether they want to share their thoughts on their employer, that unpleasant customer they just served, or even dish on the latest big top-secret project going on at work.  Or perhaps they do not consider the information posted on their supposedly “private” profiles to be public.  After all, only their “friends” can see it.  Of course, some people are more discerning than others when compiling their “friends” on Facebook. 

    There are numerous examples of employees being fired for things they have posted online.  One waitress was fired from her job at a local pizza joint for posting disparaging remarks about a customer who she felt did not leave an adequate tip.  A flight attendant was fired for posting photos of herself in her uniform on her blog.  Another airline fired several employees for engaging in a discussion on Facebook in which they insulted both customers and the airline itself. 

    But when is an employer justified in dismissing an employee for something he or she posted on the internet?

    Facebook Threats:  Crossing the Line

    In the recent decision in Re Lougheed Imports Ltd., the British Columbia Labour Relations Board upheld the firing of two car detailing workers for posts they made on Facebook.  The two employees posted homophobic remarks, made comments detrimental to their employer’s business and threatened their supervisors, who were also their “friends,” on Facebook.  It was held that the comments amounted to insubordination justifying termination of their employment.  It was further held that the employees, who had hundreds of Facebook “friends”, could not have a serious expectation of privacy when publishing comments on their Facebook pages.

    Online Criticism of Employer amongst Co-Workers: Permissible?

    This decision is in sharp contrast with the stance recently taken by the National Labor Relations Board in the United States.  The board is challenging the decision of an ambulance service provider to fire an employee over a Facebook post.  In that case, the employer in question had a blanket policy in place which prohibited its employees from depicting the company in any way on social media sites.  The employee, who was upset that her supervisor would not allow a union representative to assist her in preparing a response to a customer complaint about her work, criticised her supervisor on Facebook.  The employer alleged that the employee also made personal attacks against a co-worker on Facebook.  The board indicated that employees are protected in their ability to discuss wages, working conditions and unionization and that the employee in question was simply discussing her concerns and criticisms with fellow employees on Facebook.  The case is set to be heard by an administrative law judge on January 25, 2011.

    There is a fine line between communications which are protected by the freedoms afforded by industrial relations legislation and those that are not.  Employees are generally permitted to express their views in ways that do not include coercion, intimidation or threats.  However, as the decision in Re Lougheed Imports Ltd. illustrates, it is not acceptable for employees to threaten or personally insult supervisors or to make statements to damage the business reputation of their employer.

    What This Means to You

    As an employer, there are several ways that an employee can cause harm to your organization through internet publishing, including:

    (1) inappropriate/negative comments about your organization, another employee or your organization’s customers or clients;

    (2) sharing confidential information regarding your business; and

    (3) posting information which conflicts with the employee’s job duties.

    By now, most employers are, or should be, aware that it is advisable to have policies in place addressing social networking and internet publication by employees.  This type of behaviour can sometimes be caught by other, more general policies regarding company loyalty or use of confidential information.  It is preferable to have specific policies in place which inform the employee of the employer’s expectations in this regard. 

    It’s not enough to have policies.  Employers must also make sure that all employees understand that anything they post online should be considered as being for public consumption.  Employees should understand that they will be held accountable for causing harm to the employer’s interests through internet publication.

    Lastly, in light of the position taken by the National Labor Relations Board in the ambulance case, it is advisable for employers to review all internet policies in order to ensure that they infringe employees’ rights under the relevant legislation.  Policies should be specific and blanket policies prohibiting any criticism of the employer whatsoever should be avoided.