Canadian Employment Law Today

February 5, 2014 Ask an Expert with Stuart Rudner Rudner MacDonald, Toronto Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Banning information from employee personal websites and social media QUESTION: Can an employer order employees to avoid displaying certain information on their personal websites and social media sites, such as anything identifying themselves as employees of that particular company? Answer: Yes. If proper policies are in place, employees must comply with "acceptable" online activity. If employers were not already convinced that social media is a legitimate concern and they need to take steps to control their employees' use thereof, some recent events should make this even clearer. This past summer, a drugsoliciting Mr. Lube employee was fired after police responded to his request for marijuana over Twitter: "Any dealers in Vaughan wanna make a 20sac chop? Come to Keele/Langstaff Mr. Lube, need a spliff." The tweet went viral — even the police joined in, re-tweeting the employee's request for drugs and asking if they can join. The employee was dismissed. In early 2013, HMV found itself on the wrong end of extremely negative publicity after some of its employees took control of the company's Twitter account and effectively provided a live Twitter feed as they were fired. The tweets began with "We're tweeting live from HR where we're all being fired! Exciting!" and continued for all of the world to see. While these tweets were being posted, company executives became aware of the situation, but struggled to reclaim control of the Twitter account, losing valuable time and causing additional damage to its reputation, particularly when it became known that they did not know how to reacquire control. The possibility that an employee may express opinions online which may negatively impact her employment rela- 2 tionship and the organization itself is a reality employers must now consider. To avoid such scenarios, employers should have a carefully drafted social media policy. There is no "standard" format to such policies — they will vary from organization to organization. Regardless of the type of policy implemented, it is important that it be well understood by employers and employees alike. A social media policy needs to set out clearly that if an employee disparages the company, harms the company's reputation in any way, or posts sensitive or confidential information online, that employee will be subject to disciplinary measures. Among other things, policies can provide that employees are not to identify themselves as employees of the company and, in any event, are to make it clear that all opinions expressed are their own and not the company's. However, it should also be made clear to the employee that even if she does so, her conduct can negatively impact the employer and lead to discipline. A social media policy should not only cover the material on the company blog, or the company Facebook or Twitter account — it should set out the appropriate use of personal blogs, Facebook pages, or Twitter accounts of employees in order to confirm what the employee can and cannot do away from work, as well as to confirm that off-duty conduct can result in discipline and, in appropriate situations, dismissal. The policy should also be clear that it is not restricted to use from work computers, but rather applies to use of social media on employee time. It is important for employers to define what is, and what is not considered "acceptable use" both on the company's network and outside of it. Policies should be clear that company systems may not be used for illegal activity such as copyright/plagiarism and downloading pirated software. Enforcement of the policy should be clear to all employees so they are aware of what disciplinary action will be taken, up to and including termination, if policies are not followed. Make it clear that consequences can flow from off-duty conduct. In a number of Canadian and American cases, employees have faced discipline and even dismissal for their comments posted on social media platforms. The key issue is often whether the online comments prejudice the employer, adversely affect the employer's reputation, or make the continued employment relationship impossible. Last winter, an Ontario Hockey League referee visiting Sault Ste. Marie for a game posted extremely unflattering and offensive comments about the female population of Sault Ste. Marie, much to the chagrin of the league. Although he tried to remedy the situation with an explanatory tweet in which he claimed that it was, essentially, an inside joke with a friend, the league suspended the referee for the balance of the season and playoffs. In 2012, an employee of a clothing store posted a reprehensible comment on the Facebook memorial wall for Amanda Todd, a 15-year-old victim of bullying who committed suicide. When someone viewed the post and discovered the identity of the poster and the company he worked for — all of which was information readily available online — she contacted the employer, who promptly dismissed the individual. In Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127, a unionized employee made comments on her personal blog and published information and pictures about residents in violation of a signed confidentiality agreement. Her employer argued that she had made comments on the website about fellow employees that were of an inappropriate nature. As a result her discharge cause was upheld. In Wasaya Airways LP v. Air Line Pilots Assn., International, a unionized employee's discipline for just cause was upheld because of derogatory comments he made about First Nations people on his personal Facebook site. More recently, in Perez-Moreno v. Kulczycki, the Ontario Human Rights Tribunal decided that an employee's comments on her Facebook page concerning her manager were discriminatory and in violation of the province's Human Rights Code. The online comments, which referenced a co-worker's ethnic background in a derogatory manner, were posted after the employee intervened in an argument between two co-workers. The co-worker felt humiliated and ashamed as a result of the comments, as did his son, who was informed of the discriminatory comments by a classmate at school. The Perez-Moreno decision confirms that the Ontario Human Rights Code applies to workplace-related postings on the Internet, including comments made by employees on their personal Facebook pages. The tribunal found that the "statements and actions in communicating them on Facebook amount to harassment in employment contrary to the code. The comments clearly were vexatious and related to an incident that occurred in the workplace. The respondent knew or ought reasonably to have known her comments were unwelcome Published by Canadian HR Reporter, a Thomson Reuters business 2014 Continued on page 6

• Cover