“Tweets Are My Own” – Except When Your Company’s Reputation Is On The Line

Question: Can an employer order employees not to display certain information on their personal websites and social media sites, such as anything identifying themselves as employees of that particular company?

Answer: Yes. If the proper policies are in place, employees must comply with “acceptable” online activity.

If employers were not already convinced social media is a legitimate concern, and they need to take steps to control employees’ use thereof, some recent events should make this even clearer.

A drug-soliciting Mr. Lube employee was fired after police responded to his Twitter request for marijuana: “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 responded, retweeting the employee’s request for drugs and asking if they could join. The employee was dismissed.

In early 2013, HMV found itself on the wrong end of extremely negative publicity after some employees took control of the company’s Twitter account and produced a live Twitter feed as they were being fired. The tweets began with “We’re tweeting live from HR where we’re all being fired! Exciting!” and continued for all the world to see.

While the 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 the company’s reputation, particularly when it became known they did not know how to regain control.

The possibility that an employee may express opinions online that may negatively impact her employment relationship 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. But 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 clearly set out 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 do not identify themselves as employees of the company and, in any event, 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 clarify that her opinions are her own, her conduct can still negatively impact the employer and lead to discipline.

A social media policy should not only cover material on a company blog or a company Facebook or Twitter account — it should also set out the appropriate use of personal blogs, Facebook pages or Twitter accounts to confirm what the employee can and cannot do away from work, as well as confirm that off-duty conduct can still result in discipline and, when appropriate, dismissal.

The policy should also be clear that it is not restricted to employees’ use of social media on work computers but also extends 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 or 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 comments they 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.

An Ontario Hockey League (OHL) referee visiting Sault Ste. Marie, Ont., for a game posted extremely unflattering and offensive comments about the female population, much to the chagrin of the league. Although he tried to remedy the situation with an explanatory tweet in which he claimed it was, essentially, an inside joke with a friend, the league suspended the referee for the balance of the season and playoffs.

In 2012, a clothing store employee 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, which 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 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 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 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 to the applicant.”

The tribunal instead ordered the employee to complete the Ontario Human Rights Commission’s online training program and to provide written confirmation to her co-worker upon completion.

Although the co-worker did not include his employer as a respondent, employers can nonetheless be held vicariously liable for the actions of employees, even if they are not directly involved in the misconduct. A proper social media policy can shield employers from vicarious liability in such situations.

By Stuart Rudner, a founding partner of Rudner MacDonald, a Toronto-based employment law firm. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business. He would like to thank Patrick Pengelly for his assistance in the preparation of this article. This article is reprinted by permission of Canadian HR Reporter. Copyright Thomson Reuters Canada Ltd., February 10, 2014, Toronto, Ontario, 1-800-387-5164. Web: www.hrreporter.com

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