Can Facebook Get You Fired?

Many employers are still feeling bewildered about how far they can go in monitoring employee use of social media inside and outside the workplace. Liabilities such as a damaged company reputation and workplace conflict are serious concerns for employers.

Recent judicial decisions are showing us that information shared on social media, blogging and internet communication forums via sites like Facebook or Twitter are not private, and are published with the knowledge that it could be viewed by members of the public. Melanie Reist; a civil litigation lawyer and partner of Kitchener firm Morrison Reist, recently highlighted some landmark decisions from arbitrators, tribunal members and courts in the March/April 2012 issue of Exchange Magazine.

• Case #1 - Union alleged that an employer wrongfully terminated two employees. The employees had made posts on their Facebook profiles which included rants about workplace frustrations. The board found the comments "offensive, insulting, and disrespectful". Some comments were directed towards a supervisor using terms like "The Fixed Ops/Head Prick", "half-a-tard" and more vulgar terms. These two individuals also made allegations that the supervisor was in a sexual relationship with a male teenager and encouraged their connections to not give the organization their business because it "ripped off customers". The board's verdict was that the conduct amounted to serious insubordination, damage to the employer's reputation and supported termination for cause.

• Case#2 - Pilot was terminated for posting derogatory comments regarding the company's owners on Facebook. The arbitrator stated that when an individual is using the internet to display commentary or opinion, the individual must assume there is a potential for world wide accessibility to the statement. The comments were found to have had a "real and material connection to the airline and gave reason to the company to have both substantial and warranted concerns about potential reputational harm."

These cases help show that employers do not have to feel like they are fighting a losing battle against "the social media monster" if they have a clear written policy in place. The digital media age is changing constantly and it's important for employers to recognize that a consistent policy is an essential tool if you are in a situation where you need to dismiss an employee for a social media/internet related misconduct. (Read Melanie Reist's recommendations  for a social media policy on Page 44 of Exchange Magazine).

Your policy and how it will be enforced should be clearly communicated to all employees. You can ensure that consequences for breaching the policy are clearly understood through the use of real world examples. In our previous blog, "You Cannot Control the Use of Social Media, but You Can Manage it Effectively" (visit social media blog section) we outline what constitutes non-permissible behaviour" and some free tools at your disposal to monitor internet communications.

If you would like to discuss creating how to implement an acceptable Internet Use and Social Media policy, please contact Anna Aceto-Guerin directly at (519) 624-0800 or via email at anna@clearpathemployer.com

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