Social media is evolving at an incredible pace.
Just when organizations were getting used to Facebook and LinkedIn, along came Pinterest and Instagram (which was recently bought by Facebook). Despite this rapid change, I find organizations are still trying to figure out all of the legal implications of this communication medium that blurs the line between professional and personal.
One of the fears organizations have about social media is employees may inadvertently (or intentionally) disclose confidential information, such as intellectual property or financial information. The other elephant in the room is the fear employees will use social media to vent their anger or frustrations with co-workers and managers or express themselves in an unprofessional, offensive and potentially illegal manner.
But what can employers do? A basic rule of thumb is an employer has no authority over what employees do in their personal time, unless the employer can show its legitimate business interests are affected.
For example, a personal caregiver at an Ontario nursing home criticized management and her co-workers in her public blog. The blog also contained inappropriate comments, confidential information and medical data about some of the residents. The employer fired her and an arbitrator upheld her termination in 2007 on the grounds of breach of confidentiality, insubordination and conduct damaging to the employer’s interest. (SeeChatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127 (Clarke Grievance))
In another case, EV Logistics, a dry goods storage warehouse in Langley, B.C., dismissed an employee in 2007 because of his personal blog. The blog, in which he mentioned EV Logistics as his employer, contained racist and extremely offensive remarks, including threats against United States Customs, violent scenarios and pro- Hitler comments. The employee grieved his dismissal and, in January 2008, the arbitrator found the blog wasn’t cause for dismissal because his off-duty conduct was not specifically directed at the employer, individual employees or customers. The arbitrator also took into consideration the employee’s relative inexperience, poor health and poor family history. (See EV Logistics v. Retail Wholesale Union, Local 580 (Discharge Grievance))
While these two cases might seem extreme, a poll of 2,060 adults in the U.S., conducted by Travelers Global Technology in 2009, found:
•30 per cent of respondents are happy to post information online about their employers as long as they believe it is true
•20 per cent don’t consider how their posts on social media sites can reflect on their employers
•33 per cent believe employers shouldn’t use their posts against them, regardless of the content.
And this isn’t a problem unique to young workers. I’ve seen numerous stories of people in the baby boomer generation falling into the same trap.
This can lead to a lot of unflattering posts about employers on social media sites. Just search “stupid” and “boss” on Twitter to see how many people have tweeted about this in the past 24 hours. The other day I counted 73 and, no, the user wasn’t saying “I’m so stupid, my boss is great.”
It’s a fact of the working world that employees complain about their jobs to friends and family, but doing so on social media makes it accessible to a much larger audience and can damage the organization’s brand if the connection is made between the user and the employer.
Organizations also have to consider how human resources professionals and managers use social media to screen candidates. Is it OK for recruiters to do background checks of candidates on social media sites and base their hiring decisions on the information they find? Some of that information could set the organization up for discrimination claims if recruiters are swayed by a candidate’s age, sexual orientation, race or marital status. My fellow blogger Dave Crisp had a few intriguing blogs about this very topic a few weeks ago.
Then there are employees who befriend other employees on social networks and talk about another co-worker during their personal time. If the comments are mean and disparaging, could this be considered workplace harassment, even though it occurs in the virtual world and outside of work hours?
Blocking social media isn’t the solution. It won’t stop employees from accessing it on their own time — just look at all your employees that have personal smartphones — and embracing social media can have numerous benefits for the organization.
The best way an organization can protect itself from many of these pitfalls is to create a social media policy, giving employees guidance on what is acceptable and what isn’t. At the very least, current communication and computer policies should be amended to include social media.
The next few blogs will go a bit into social media policies and looking into a few cases in details. However, when creating a new policy or amending an existing one, organization should always consult a lawyer. I’m sure fellow co-blogger, Stuart Rudner, can speak to this area.
Unfortunately, my law degree is still at the bar.