Canadian Employment Law Today

CELT November 13 2013:celt 467.qxd 13-10-25 10:56 AM Page 4 November 13, 2013 CASE IN POINT: TECHNOLOGY Reigning in employee misuse of Internet and social media Employee claimed old contract didn't apply to new position after promotion, but court found contract was still enforceable BACKGROUND Policing online activity THE EXTENT to which people are connected with each other through the Internet and social media is so pervasive that often people find it strange if they're off the grid. Many employees are connected at work, whether through company equipment or their own, and they continue to be after work as well. But with little regulation, people can do whatever they want online, which can be a problem if they're identified as employees. While it's not easy to keep track of and regulate employee activity on online, employer's can take steps to mitigate the risk of legal liability or damage to their reputations. Employment lawyer Curtis Armstrong discusses reigning in employee abuse of the Internet and social media. | BY CURTIS ARMSTRONG | THE INTERNET and social media have changed our world. Communications which 20 years ago took days, if not weeks, to make their way through a workplace, now take mere seconds to reach tens, hundreds, and even millions of people around the world. Theoretically, this unprecedented access to information should mean we are better informed and more productive than we were in any previous generation. But are we? Employers know that not every aspect of this new technology is positive. Studies suggest access to the Internet during business hours can reduce workplace productivity by up to 40 per cent, as employees turn their minds from work to social interaction and play. Workplace bullying and harassment is also on the rise, due in part to the ability of colleagues to reach each other secretly via the Internet rather than publically by the water-cooler. And the anonymity of the Internet has enabled 4 many a malevolent blogger and tweeter — often an employee — to destroy products, brands, and entire companies. Fortunately, much of this behaviour can be minimized when employees understand the parameters and consequences of Internet misconduct. To this end, we can divide Internet misconduct into two categories: • Misconduct while on the job (for example, excessive personal use of the Internet and accessing prohibited sites during work hours) • Misconduct that may take place outside of the workplace (such as offensive, irresponsible, defamatory blogging, tweeting and harassment). The first form of employee Internet misconduct is the easier of the two to identify and discipline. Relatively simple technology allows employers to track time spent online, sites accessed, and content downloaded and uploaded. If misconduct is identified, it can and should be dealt with appropriately. The second form of misconduct can be more problematic. Canadian courts and labour arbitrators have traditionally drawn a line between an employee's work and private life, declining to uphold discipline for off-duty conduct where there is no clear connection to the workplace. In some cases that connection is obvious — for example, where the company is criticized publically. In other cases, the line is not as clear. Consider the case of the tragic death of high school student Amanda Todd. In the aftermath of her suicide following relentless bullying and harassment, an employee of a retail store in Ontario, a man with no apparent connection to Todd, posted to Facebook the comment: "Thank God this b---- is dead." A Calgary woman tracking Facebook comments about Todd saw the posting, and when she viewed the poster's on-line profile, saw the name of his employer. She reported the posting to the employer, who immediately fired the man because the posting was contrary to the employer's values and the poster could be publicly identified as its employee. Was the man's posting sufficiently connected to the workplace to justify his termination? We may never know, as the case has not been adjudicated. It is, however, a thought-provoking example of how online comments, even ones not directly related to the workplace, can have a workplace impact. Steps to minimize misuse of technology What then are the steps that can be taken to minimize the risk to business caused by employee misuse of technology and social media? Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 5

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