The scope of an employer’s right to discipline and terminate an employee for indiscreet or inappropriate remarks in social media is far from settled. Given that an employee’s social media activities have the potential to “go viral” (or at least be seen by hundreds, if not thousands of people), organizations must assess whether the activities of employees outside of work have the potential to negatively affect, even transiently, the reputation and goodwill of the organization.

Currently, the legal battle over an employer’s legitimate interest in an employee’s use of social media is being played out among employees who are relatively junior within organizations and may, justifiably or unjustifiably, believe that their actions are not under the gaze of their employers.

This post compares two recent cases from the United States and the United Kingdom with an earlier case from Canada.

Don’t Make Fun of the Customers

In a recent U.S. National Labour Relations Board (NLRB) decision, Karl Knauz Motors, Inc. (Re), the NLRB considered whether a car dealership could terminate a salesperson for comments on Facebook about an accident that involved a customer of the dealership. The customer had driven into a pond and the salesperson posted photos on Facebook with sarcastic comments. The employer argued that the comments violated employee handbook rules that required employees to be “courteous, polite, and friendly to our customers, vendors and suppliers, as well as to their fellow employees” and which prohibited conduct that was “disrespectful” or involved the “use of profanity or other language which injures the image or reputation” of the employer. In addition, not long before the post about the customer, the same salesperson had posted photos and comments criticizing food that had been served at a sales event at the dealership. The tenor of the earlier post was that the dealership should have served better food given the profile of the sales event.

The salesperson claimed that he was terminated in violation of the protections afforded by section 7 of the National Labor Relations Act (NLRA), which, among other things, provides rights to participate in concerted activity for the purpose of collective bargaining or other mutual aid or protection. The NRLB has previously issued decisions and guidance documents this year warning that social media policies must not stifle workers from communicating about workplace conditions as this would offend section 7 of the NLRA.

An administrative law judge concluded that the postings about the car accident did not fall within section 7 of the NLRA because it was posted by the employee on his Facebook page and not discussion took place on Facebook about the post. By contrast, the comments about the food at the sales event were made in the context of an exchange among employees on Facebook. The administrative law judge concluded that the comments were related to the dealership’s image at the event and this could affect the working conditions of the employees by affecting sales.

In a split decision, the NLRB upheld the decision of the administrative law judge. The employee’s termination for the comments about the customer was not protected by the NLRA. However, the NLRB ordered that the employee handbook rules were overbroad and not enforceable.

The dissenting NLRB member concluded that the requirement to be courteous did not violate section 7 of the NLRA and held that:

“[r]easonable employees know that a work setting differs from a barroom, room and they recognize that employers have a genuine and legitimate interest in encouraging civil discourse and non-injurious and respectful speech.”

Say What You Will About Gay Marriage

In the Smith v. Trafford Housing Trust, a housing manager of the Trust read a news article online regarding gay marriage and posted the link to his Facebook account with the comment “an equality too far”. The manager’s Facebook privacy settings had been set so that his posting could be viewed by his “Friends” and also “Friends of Friends”. This prompted an exchange with one of the employee’s colleagues at work, which was quite tempered but suggested that those gays and lesbians “have no faith and don’t believe in Christ”. The employee was suspended and subjected to a disciplinary proceeding that resulted in a finding of gross misconduct. The employee was offered a demotion to a non-managerial position in view of the length of his service.

According to the decision of the English High Court of Justice (Chancery Division), the Trust had over 300 employees. The court found that at the material time, the employee listed that he was a manager at the Trust. His profile stated “What can I say – it’s a job and it pays the bills”. He described his religious views as “full on charismatic Christian.” His profile and wall pages also listed that he was a manager at the Trust. In putting the post into context, the court held that it was one of a number of posts about “sport, food, motorcycles and cars.”

The court concluded that a reasonable reader of the manager’s wall would not have understood him to be a spokesperson for the Trust. The court rejected that any loss of reputation by the Trust would arise in the mind of a reasonable reader. The manager’s Facebook wall “was primarily a virtual meeting place at which those who knew of him, whether his work colleagues or not, could at their choice attend to find out what he had to say about a diverse range of non-work related subjects.” The court minimized the broader access to his wall by “friends of friends” by stating that “actual access would still depend upon the persons in that wider circle taking the trouble to access it.” The court found that the manager did not thrust his views onto colleagues at the office. The medium and context was not “inherently” work related. In the result, the court concluded that the manager had been constructively dismissed.

Don’t Diss and Threaten Other Employees or Your Employer

The problems for the employees in Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518 started when one of the employees posted on Facebook a post that could be interpreted as threatening: “Sometimes ya have good smooth days when nobody’s [expletive] with your ability to earn a living … and sometimes accidents DO happen, its [sic] unfortunate but thats [sic] why there [sic] called accidents right?” Another employee also was posting derogatory comments about managers.

The employees had close to 100 and 377 “friends” respectively. Significantly, the posts were escalating in tone and extreme enough that one person “de-friended” and even the girlfriend of one of the employees commented that ”[s]omethings just shouldn’t be broadcasted on facebook, especially when you still work there.”

The employer terminated the employment of the two employees. The union grieved but lost. In an interesting counterpoint to the Trafford Housing Trust case, the British Columbia Labour Relations Board concluded that there the comments on Facebook had sufficient proximity to the employer’s business. The comments had been used as a “verbal weapon”. They went beyond shop floor comments to insubordination in front of employees who were friends of the employees by degrading a manager and referring to discipline. The comments also counselled Facebook friends not to shop at the employer. In the result, the termination was upheld.

Substance, Purpose and Context

One should be careful to draw conclusions from a handful of cases in multiple jurisdictions with different approaches to employment and privacy laws. However, one theme that emerges in all three cases is that, in addition to the substance of the social media posts, the purpose and context for those postings are important considerations in concluding whether the employer has a legitimate interest in the activity of the employee’s social media activities.

This article was written by Andrea Raso Amer and Eric Sherbine.

In R. v. Cole, 2012 SCC 53, the Supreme Court of Canada held that a warrantless search and seizure by police of a teacher’s employer‐issued computer containing sexually explicit images of a female student were in violation of the teacher’s rights under the Canadian Charter of Rights and Freedoms. In a time when employers are increasingly allowing (either explicitly or implicitly) employees to use employer‐issued laptop computers, smart phones, and other digital devices for their own personal use, this decision, as summarized below, offers a number of important lessons.

Click here to read more.

In keeping with her stance on overly-invasive employee background checks, British Columbia’s Information and Privacy Commissioner, Elizabeth Denham, has issued her findings and recommendations with respect to the B.C. Government’s policies, as an employer, for employee criminal record checks.

Finding that the government’s polices resulted in the unnecessary or overbroad collection of personal information, the Commissioner issued a number of recommendations aimed at limiting the amount of data collected by the provincial government, as well as the instances in which collection would be justified. The report also contains 16 recommendations for “Best Practices for Public Sector Record Checks”.

A “Best Practices” for private sector employers will be released at a later date.

The Privacy Commissioner’s July 25, 2012 Report can be accessed at: http://www.oipc.bc.ca/orders/investigation_reports/InvestigationReportF12-03.pdf

The Privacy Commissioner’s guidelines on social media background checks can be accessed at:

http://www.oipc.bc.ca/pdfs/private/guidelines-socialmediabackgroundchecks.pdf

The Supreme Court of Canada has granted leave to appeal the Ontario Court of Appeal’s decision in R. v. Cole, 2011 ONCA 218. Mr. Cole, a teacher, was charged with possession of child pornography and unauthorized use of a computer after a computer technician accessed his laptop to perform a virus scan and verify the system’s integrity. In doing so, the technician found a hidden folder on the hard drive containing nude sexually explicit photos of a grade 10 student. The technician reported this to the principal who, in turn, reported it to the school board. The school board that employed Mr. Cole turned over the laptop and two discs of the images to the police who searched them without a warrant. Mr. Cole challenged the charges against him on the basis that the police had infringed his Charter right against unreasonable search and seizure because he had a reasonable expectation of privacy in the contents of the laptop.

Other critical background facts include :

• Mr. Cole was a member of the IT committee and aware that computer technicians could access laptops connected to the system to maintain the integrity of the school’s information network;
• the school board owned the laptop, but permitted teachers to use them for personal use and to take them home during weekends and vacations; and
• the policy and procedures manual applicable to Mr. Cole imposed some limits on personal use, but did not provide for any searches and only addressed privacy in connection with email.

The Court of Appeal had determined that the computer technician and school board’s search of the laptop did not breach any Charter rights. The technician acted reasonably within the scope of his function and Mr. Cole had no reasonable expectation of privacy with respect to his actions. The principal and school board acted appropriately given their obligations under the Education Act. The police search, however, was found to be unreasonable resulting in the exclusion of the evidence gained from the laptop and two discs.

Of concern for employers is the finding that Mr. Cole had a reasonable expectation of privacy in the information stored on the hard drive of his laptop, subject to the limited right of access by the school board’s computer technicians to maintain the integrity of the system. The decision was a good reminder that explicit policies putting employees on notice they should have no expectation of privacy in material kept on work systems are essential.

The Supreme Court, as is its practice, did not issue reasons in granting leave to appeal. The Canadian Association of Counsel to Employers (CACE) has intervened seeking that the Supreme Court articulate a broad and clear right of employer access to work computers as part of their integrated information system intended to support work.

Au cours des dernières semaines, plusieurs postulants à des emplois aux États-Unis ont déclaré s’être fait demander leur mot de passe Facebook par des employeurs qui souhaitaient obtenir des renseignements personnels sur eux. Peu après, les médias regorgeaient de récits où des employeurs auraient demandé à des candidats d’ouvrir leur page de profil Facebook ou autre sur un ordinateur se trouvant dans la salle d’entrevue ou alors où des gestionnaires auraient exigé que le postulant devienne leur ami sur Facebook durant le processus d’entrevue.

Assurément, de telles tactiques visant à obtenir des renseignements personnels sur les candidats à partir de réseaux sociaux sont beaucoup moins fréquentes de ce côté-ci de la frontière. Le Toronto Star a néanmoins rapporté qu’un candidat à un poste de policier dans la région de Toronto s’était fait demander durant une entrevue de fournir son nom d’utilisateur et son mot de passe Facebook. Dans la foulée de la publication de l’article, la Commission ontarienne des droits de la personne s’est penchée sur la question à savoir si cette pratique d’embauche est acceptable.

En gros, selon la Commission, la réponse est « non ». La raison : cela pourrait contrevenir au Code des droits de la personne de l’Ontario. Voici un extrait du texte que la Commission a affiché sur sa page Facebook :

« Un profil sur Facebook pourrait contenir des renseignements directs ou indirects sur l’un des motifs interdits par le Code ou sur tous ces motifs : la race, la couleur, l’ascendance, la croyance (religion), le lieu d’origine, l’origine ethnique, la citoyenneté, le sexe (y compris la grossesse, l’identité sexuelle), l’orientation sexuelle, l’âge, l’état matrimonial (y compris le partenariat de même sexe), l’état familial, le handicap et l’état d’assisté social. Ces renseignements peuvent être publiés sous forme de texte ou être déduits de photos.

…les employeurs ne devraient pas demander aux candidats à un emploi l’accès à de l’information stockée dans un média social ou sur un site en ligne. Si un employeur le fait, il prend le risque de faire l’objet d’une requête pour discrimination en vertu du Code. »

La Commission a en outre conseillé aux chercheurs d’emploi de faire preuve de discernement lorsqu’ils mettent de l’information en ligne sur un forum public. Si l’employeur est en mesure de voir les renseignements sans avoir à demander au candidat la permission d’y accéder, ceux-ci pourraient être utilisés à des fins discriminatoires.

La présence d’une personne sur les réseaux sociaux peut donner un aperçu de sa personnalité, mais elle peut aussi dévoiler de l’information (p. ex. état matrimonial ou croyances religieuses) qui normalement demeurerait inconnue de l’employeur, ce qui dans certains cas pourrait inciter des candidats à prétendre être victimes de discrimination de la part de l’employeur potentiel.

Références : http://www.thestar.com/business/article/1148973–would-you-reveal-your-facebook-password-for-a-job (article en anglais)

http://www.facebook.com/the.ohrc (page Facebook de la Commission)

Site Web de la Commission ontarienne des droits de la personne

In recent weeks, several U.S. job candidates reported that prospective employers had requested their Facebook passwords in order to secure personal details about them. Shortly thereafter, there was an outpouring of candidates relaying anecdotes to the media of employers asking them to log onto their social networks on computers at the job site or hiring managers requesting to become “friends” on Facebook during the interview process.

Employer attempts to secure personal information about job candidates from social networking sites is certainly much less common north of the border. Nonetheless, the Toronto Star reported that a candidate for a law enforcement position in the Toronto area was asked at an interview to provide his Facebook login and password information. As a result of this report, the Ontario Human Rights Commission weighed in on the issue of whether this hiring practice is permissible.

In short, according to the Commission, the answer is “no”. The reason: doing so may violate Ontario’s Human Rights Code. The Commission’s post on its own Facebook page stated, in part:

A Facebook profile could include direct and indirect information on any or all of the 15 prohibited grounds: race, colour, ancestry, creed (religion), place of origin, ethnic origin, citizenship, sex (including pregnancy, gender identity), sexual orientation, age, marital status, family status, disability and receipt of public assistance. This information could be available as text or inferred from pictures.

… (E)mployers should not ask job applicants for access to information stored on social media or other online sites and that doing so could leave an employer open to a claim of discrimination under the Code.

The Commission also counselled job applicants to use discretion when posting information online in a publicly available forum. If the employer is able to locate information online without having to request access to the information from the candidate, such information could be used for a discriminatory purpose.

Although a person’s social media presence could reflect upon his or her character, it could also reveal information – such as family status or religious affiliation – that an employer would not otherwise have, and that could lead to discrimination allegations against the prospective employer.

See: http://www.thestar.com/business/article/1148973–would-you-reveal-your-facebook-password-for-a-job

http://www.facebook.com/the.ohrc