Social Media and the Workplace

In 2016, people seem to lead double lives, both in real time, and through social media. Good, bad and ugly, nearly every life event is captured on Twitter, Instagram or Facebook. This blog post comes as a warning not to get lost in the race for ‘likes’ and lose track of the legal implications that attach to pics from the weekend, and status updates regarding the inevitable headache after Saturday night’s birthday party.

Ontario Courts have ruled that posted content to social media sites such as Facebook and MySpace constitute data in electronic form, producible as documents under the Rules of Civil Procedure. (Leduc v Roman, 2009 CanLII 6838 [ON SC], at para 27.) Practically speaking, this means that information drawn from a Facebook profile, Instagram photo or Twitter feed can be relied upon as evidence in a legal action.

This includes content that is privacy protected on the site and posts that are limited to ‘friends’. No matter how personal the post, once it is out in cyber space it is considered public knowledge. In the context of employment law, this has serious implications for employees and employers alike.

Social Media & Workplace Rights for Employees

There is no right to privacy in anything you submit online. Once you post it, your employer has a right to see it. If your photo or status update violates company policy or may cause harm to your employer’s business or reputation, discipline and or termination may follow. Accordingly, be mindful of what you post!

No matter how innocuous it may seem, it is best not to share the details of your job with your online community. If you inadvertently publish information about clients you work with, or their personal circumstances, you could be breaching your employer’s confidentiality policy. This is particularly the case for those who work in the healthcare sector where standards of privacy in personal information are higher than any other industry.

If you have a disagreement with a co-worker or manager, keep things civil and do not post about it on the net! The Ontario Human Rights Tribunal has ruled that the Human Rights Code applies to work related postings on the internet. (Taylor Baptiste v. Ontario Public School Employees Union, 2012 HRTO 1392, see also Perez-Moreno v. Kulczycki, 2013 HRTO 1074.) When you communicate to your colleagues over social media, whether it be after hours or over the weekend, the communication is still considered part of the work environment.

Accordingly, you may be subject to serious discipline for bullying and workplace harassment if you send inappropriate messages or post hurtful opinions regarding your colleagues or superiors.

The major take-away for employees: the internet is not your private diary. Do not post anything online that you would feel uncomfortable sharing with your employer or co-workers.

IN THE NEWS
• Turning the Tables: An Employer’s Use of Social Media Examined
• Playing the Workaholic on Social Media
• Employers are also responsible for what they do on social media, as the TTC recently learned

Social Media & Workplace Rights for Employers

Items that your employees post online can impact your public reputation and create vicarious liability for your organization. A proactive social media policy can help you mitigate against these risks. Your social media policy must cover: (1) Appropriate use of the company’s social media accounts (Facebook, Twitter, Instagram, etc.) (2) appropriate access to social media sites from company computers during working hours, and (3) appropriate use of personal social media accounts after working hours. Here are some key points to consider:

• Ensure that your social media policy is broad enough to capture sites such as Facebook and Twitter, personal blog sites, and forms of online expression that have not yet been introduced.
• Make it clear that the prohibition against bullying and harassment in the workplace does not end when employees leave the physical space. The workplace extends to the online world, and cyber-bullying and harassment of one’s co-workers will lead to discipline.
• Advise employees that an investigation regarding complaints of bullying and harassment can include a review of their online presence and social media profiles.
• Warn employees to use caution and good judgment as their online presence may have implications for the company’s public reputation. Comments that are discriminatory, misogynist, or inciting violence will not be tolerated and can lead to discipline.
• Advise employees when posting online and mentioning the company name, they should include a disclaimer that the opinion expressed does not reflect the perspective of the organization.
• Reinforce the organization’s confidentiality concerns. Include clear examples of posts that would constitute a breach of privacy policy. Explicitly state that employees are not to post photographs of clients or release any of their personal information.
• Once you have completed your social media policy, have employees sign off to demonstrate that they have read and understood its contents. A review of the policy should be completed on an annual basis and employees should be given a refresher once updates are implemented.