Social Media in the Workplace: A Universal Conundrum

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I have blogged in the past about the trouble that employers face these days because of social media. All it takes is one employee with a video camera and an Internet connection and a business can be faced with serious reputational harm and loss of business. A Facebook status update or a Tweet can cause an equal amount of business harm, or legal liability if an employer takes action against an employee for what he or she posts on a social media site. Courts are just beginning to figure out how to handle these cases (such as the Facebook status update, which a court recently found to be protected, concerted activity under the National Labor Relations Act).

Courts in other countries are facing the same dilemmas. I saw a recent posting on a British Columbia Labour Relations Board decision in Lougheed Imports Ltd (West Coast Mazda) v United Food and Commercial Workers International Union, Local 1518 that established that employees have no reasonable expectation of privacy in comments made on social networking sites, and that when those comments are damaging to the employer’s business or offensive, insulting and disrespectful to supervisors, the employer may have just cause for termination.

However, employers who monitor their employees’ online conduct do have reason for concern and shouldn’t think that all comments can be grounds for termination. Sometimes, an employee’s conduct may be protected speech, if for example an employee is complaining about discrimination. Other times, an employer may learn confidential information about an employee, such as his or her sexual orientation, political affiliation or disability. An employer might not have reason to know this information in a work context, and there is the concern that this information is then illegally used in an employment decision.

The bottom line is that employers must continue to be careful and prudent when monitoring employees’ use of social media and taking employment actions based on it. The area of law continues to evolve.

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