March 1, 2014
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[Note: this is a transcript of a video that originally appeared on our website in March 2014]

Social media is not just for keeping in touch with friends anymore. Increasingly, it is becoming a very valuable business tool. Employers are frequently providing employees with cell phones for their personal and business use, and expecting employees to stay connected and be available to respond to requests and customers at all hours of the day, not just during business hours. Many organizations also have their own social media pages, a Facebook page or a Twitter account, which they expect employees to contribute to. These new uses of social media have, of course, given rise to many new legal issues in the workplace. Employee posts on their own social media sites can have some very unintended consequences, as highlighted below.

First of all, posts are permanent. That’s the most important thing to remember about them; a lot of people forget that or are not aware of it. And the other issue is that many employees assume that they have high privacy settings and that their posts aren’t public, when in fact they are. An employee’s online comments about colleagues or a supervisor could constitute workplace harassment or discrimination, contrary to human rights legislation or workplace harassment legislation.

Threats of physical violence are common on the Internet and can be chilling in their viciousness. Such threats by employees constitute a contravention of workplace violence legislation and can also lead to police intervention. Employee posts can harm an employer’s business interests by disclosing confidential information or information about clients or third parties. Harmful posts can also do serious damage to an employer’s reputation. Careless posts can harm an employee’s own reputation and jeopardize their continued employment.

There are pitfalls for employers in all of this as well. First of all, employers are responsible for their employee’s behavior, and there will be potential liability if an employer is aware of inappropriate posts online and fails to take action to deal with it. Often in the hiring process, employers are tempted to check out potential candidates on Facebook. The danger here is if a candidate is rejected or not offered a position because of one of the grounds prohibited by human rights legislation, the employer could be looking at a human rights complaint and the serious consequences that flow from that.

A number of years ago, the general advice that lawyers gave was that anything that was done on the employer’s equipment belonged to the employer, and employees had no expectation of privacy. That has recently changed, and the Supreme Court of Canada has weighed in on that issue. While an employer may limit that expectation of privacy by having policies in place, and cautioning employees that their online activity can be monitored for certain purposes, there is still going to be some level of expectation of privacy. It is analogous to the contents of a drawer; the employer owns the drawer, but there is an expectation of what you put in your drawer is going to be private. Or, for example, the contents of a telephone conversation; you wouldn’t be expecting an employer to be able to listen in on that.

Employers can take steps to minimize potential damage from social media. The most important thing that an employer can do is have a social media policy that explains the culture of social media use and sets out what is and is not appropriate online behavior. Ideally, this policy will reference other policies dealing with harassment, anti-discrimination or bullying, for example. The key element for employers is not just having a policy, but also making sure that all employees, including supervisors, have a copy of it and understand it. Then the employer needs to ensure that it is enforced consistently.

Social media can be a very powerful force, and it is an excellent business tool. Below are some basic tips to make this work for everybody in the workplace.

For employees

The key thing is to be aware of what is appropriate use. Think, pause and reflect before pushing the send button. It’s remarkable these days how many messages and comments are thrown off in the heat of the moment. Those are typically the ones that get people into trouble.

For employers

It is important to have a social media policy and educate employees about it. They should generally create a positive social media environment where employees want to participate. And finally, employers should be aware of what is going on around them. Many employers don’t even know of certain online platforms that exist right now. And we’re not suggesting for a moment that anyone goes snooping on employees, but employers cannot ignore inappropriate behavior of which they have become aware.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law