Aren't posts on a personal social media account private?

Not necessarily. Many employees may think that their personal accounts are private and that they can say anything, even about their employment.

Our courts and arbitrators have determined that what employees write in their social media postings, blogs and emails, even if initial distribution is limited, can be disseminated and discovered by others. The privacy policy on the platform and the settings used by the employees may be a factor. However, if it is destructive of workplace relationships, harmful to the employer or contrary to the law, it can have consequences for the employee.

Employees owe duties to their employer. These include duties of loyalty, fidelity and confidentiality. They can extend outside of the workplace and into social media.

Don't ignore social media – have a policy

Social media can be a powerful tool, for good and bad. As an employer, you can give some direction to the positive use of social media and set expectations through a policy.

Employers have the right to manage employee conduct that affects the workplace, including the use of social media. This includes the right to make policies and set expectations, and discipline employees for breaching these expectations.

There are a number of things employers will often consider including in their social media policies: reminders that employment duties and company policies apply to cyberspace; setting boundaries for use during business hours (in one of the cases above, the employee was posting to Facebook during bathroom breaks); addressing whether employees are representing the employer when online; maintaining confidentiality over personal and corporate information; advising employees that their posts may be monitored and reviewed if appropriate; notifying employees they are responsible for their activities and may be held accountable; and warning employees of consequences of inappropriate conduct.

Taking action

The question of whether an employer can act in response to social media postings, and the degree of that action, depend on the facts of each case. There are more and more examples of inappropriate conduct resulting in significant discipline, sanctions or termination.

One case involved an employee who made grossly insubordinate, abusive and intimidating postings about managers that led the managers to take time off for emotional distress. An arbitrator upheld the dismissal for cause.

As a result of a Facebook posting by the CEO of Netflix that viewing "exceeded one billion hours," the U.S. Securities and Exchange Commission issued a notice that there was sufficient wrongdoing to warrant civil claims due to the dissemination of insider information.

Finally, an employee of a well-known Canadian company who tweeted an invitation to drug dealers to visit him at work to "make a 20-sac chop" changed his account to "private" only after he was fired.

Employees' social media activities can provide various benefits like being a valuable promotional vehicle and helping to gauge workplace satisfaction. A good policy will help employees understand expectations, and support employer action if the activity is inappropriate or harmful to the employer or other employees. If that does not help, employers have rights when employees cross the line.

Note: This is a reprint of an article by Ryan Berger of Bull, Housser & Tupper LLP.