Legal news and trends for Canadian in-house counsel and c-suite executives
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By Henry Dinsdale and Jeff Goodman Old wine in digital bottles Disciplining employees for their personal social media use. I n recent years, Canada has experi- enced the mass popularity of social media — blogs, Facebook, and Twitter to name a few. Canadians are among the world's most prolific social media users, with an estimated 48 per cent of us on Facebook. By 2014, it is projected that 68 per cent of Canadians will visit social networking sites, according to the latest reports. Currently, there is little jurisprudence on an employer's ability to discipline an employee for his or her social media use. This fact is likely attributable to the new- ness of social media. But, given the grow- ing popularity of social media in Canada, employers should expect that they will have to confront this issue soon. The off-duty conduct of employees has long been recognized as a legitimate source of concern for employers. As early as 1910, an Ontario court, in Denham v. Patrick, upheld the dismissal of a farm hand whose adulterous affair negatively affected his employer. Social media can serve to intensify the adverse impact that an employee's off-duty conduct might other- wise have on an employer. These methods of communication provide the public with 24-hour access into an employee's private life and give disgruntled workers a soapbox of unprecedented proportion. The resulting consequences for employers can be signifi- cant. For example, a physician practice management company in the United States saw its stock price plummet from US$41.75 to $1.09 as a result of online postings pur- portedly made by the company's doc- tors. Domestically, Facebook postings by Canada Border Services Agency employees that showed new recruits drinking while in uniform and referred to Prime Minister Stephen Harper as a "serial killer" garnered national media coverage and spurred a public investigation. While social media as a source of disciplinable conduct is new, the legal principles that apply to an employee's off-duty use of social media are becoming well-established. An employer may only discipline an employee for his or her private affairs, even if publicized through social media, if the employee's off-duty conduct negatively affects the employer's business or reputation or the employee's ability to perform his or her job. Employers may only terminate an employee for his or her private conduct when that conduct irrepar- ably undermines the employment rela- tionship in light of the entire context that surrounds the employee's behaviour and employment (for example, the nature of the employer's business and the employee's past performance and service). In Lougheed Imports Ltd. v. United Food and Commercial Workers International Union, the B.C. Labour Relations Board upheld the dismissal of two employees who posted disparaging remarks about their employer on Facebook. Together, the employees had nearly 500 Facebook friends. The Facebook postings targeted the employer and its managerial staff in a threatening and homophobic manner and discouraged customers from conducting business with the employer. Included in the employees' list of friends were co-workers and superiors. In upholding the employees' dismiss- als, the labour relations board was influ- enced by the facts that the postings were damaging to the employer's reputation and degraded managerial staff. As well, the employees lied about the postings during a disciplinary investigation. In EV Logistics v. Retail Wholesale Union, Local 580, a B.C. labour arbitrator reached a different conclusion than the labour rela- tions board and overturned the dismissal of an employee for hateful comments he posted on a publicly accessible blog. On the blog, the employee professed his adoration for Adolf Hitler, fantasized about violence and killing, and made racial slurs. The employee also very clearly identified that he worked for the employer. When the employer confronted the employee about his blog, he immediately deleted it and posted an apology online. He was also quick to write the employer a letter of apol- ogy wherein he expressed deep remorse and embarrassment for his conduct. In deciding that the penalty of discharge was too severe, the arbitrator was influ- enced by the following facts: the employee was young and emotionally immature; the employee did not make any hostile remarks about his employer or colleagues; the employee immediately took responsibility for his blog and made a heartfelt apology; and the employee had a clean disciplinary record. In recognition of the fact that the employee's behaviour was wrongful and negatively affected his employer, the arbi- trator treated the period of time from the employee's date of discharge to his date of reinstatement as an unpaid suspension. These two cases illustrate that while an employee's private use of social media can present employers with new and disturbing scenarios, the legal principles that apply to an employer's ability to discipline an employee for such conduct are predictable and familiar. Principally, before disciplining an employee for an Internet posting made on the employee's own time, an employer must assess whether the employee's post- ing adversely affects its legitimate interests. If so, the employer must then ascertain what degree of discipline is proportional to the employee's conduct considering all of the facts that surround the posting and the employment relationship, including the employee's past performance and response when confronted. IH Henry Dinsdale and Jeff Goodman are partners in the labour and employment prac- tice group of Heenan Blaikie LLP in Toronto. INHOUSE FEBRUARY 2011 • 7