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Brave new world: social technology and the workplace

Valkyrie Law Group LLP

1. Introduction

Many employers are facing new legal challenges in their workplaces due to the rapid

development of widely-used communication technology. Today, our workforces are more

internet-savvy than ever before and the internet is an indispensable tool used in most of our

workplaces.

Googling, emailing, tweeting, blogging and Facebooking have expanded rapidly as social

communication tools which change the way people interact both inside and outside the

workplace. Statistical studies indicate that in 2010, 294 billion emails were sent per day1,

approximately 3 billion searches a day were run through Google, approximately 280 million

searches per day were run through Yahoo2, Twitter recorded about 50 million tweets per day3,

which breaks down to about 600 per second, and Facebook users posted more than 60 million

status updates per day. And, people spent more than 700 billion hours per month on

Facebook4.

As employers, local governments can expect to wrestle with some of the more thorny

employment law issues that are blossoming with this increased use and abuse of technology.

This paper addresses in summary form some of legal challenges facing employers in our brave

new world. In particular, the paper will cover the following:

Email use and abuse

Social media and social networking

Specific social media concerns for local governments

Privacy issues – a brief overview; and

Toolbox solutions

2. EMAIL USE AND ABUSE

The benefits of email as the most frequently used business communication tool have been

plentiful. It provides a communication technology that is fast, responsive and accessible and

there can be a lasting record of the correspondence. The flexibility of the technology allows

employees more freedom and balance, permitting them to respond from locations other than

1 Statistics from the Radicati Group Inc. which provides research on messaging and technology.

2 http://seachengineland.com/by-the-numbers-twitter-vs-facebook-vs-google-buzz-36709

3 Blog.twitter.com/2010/02/measuring-tweets.html; tweets per day

4 www.facebook.com/press/info.php?statistics

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their traditional offices. Indeed, most of us would now simply find it impossible to run our daily

responsibilities without our Blackberries and portable computers in our briefcases.

However, coupled with the many benefits of email technology, a plethora of potential for loss

and abuse has developed. Loss to the employer can be caused by email accidents or email

abuse. While accidents may take the form of a “Reply All’ which includes a response that is

inappropriate for certain receivers, could breach confidentiality, could be libellous or could

damage reputations within the workplace, email abuse presents a more active workplace

wrong for which the employer may have significant culpability.

(i) Content concerns

Employers have an obligation to provide a work environment free of discrimination and

harassment. Inappropriate material circulated internally by email can create a human rights and

a defamation problem. The British Columbia Human Rights Code (the “Code”) establishes an

employee’s right to a work environment free of harassment.

In Lanteigne v. Sam’s Sports Bar Limited d.b.a. G.G.’s Sports Bar (B.C.H.R.T.) (July 23, 1998), the

Tribunal said that an employer “must provide a healthy work environment” (para. 16). Further,

employers have been consistently found liable for discriminatory acts of their employees even

in cases where there has been a lack of knowledge by the employer: Algor v. Alcan and Others

(No. 2), 2006 BCHRT 200 and Robichaud v. Canada (Treasury Board) (1987), 8 C.H.R.R. D/4326

(SCC).

Employers are in a dangerous position each time an employee circulates an off-side email joke

of the day or even an inappropriate web-link. Further, if a complaint comes forwards in a

lawsuit, the employer may be required to supply copies of its emails and web related activities

as evidence of the problem. The speed and ease of sending an email makes it an ideal tool for

both purposeful and inadvertent work place harassment.

Therefore, as employers, local governments must be concerned with content abuse circulated

in employee emails. If an employee sends emails with offensive content or the potential to

affect the image of the local government, this content may become that government’s

responsibility.

Further, defamatory, political or religious statements sent outside by employees may at times

also be attributed to the employer. This could cause serious problems for the local government

employer.

There have been several infamous examples of email harassment and employer

embarrassment resulting from circulation of an inappropriate joke of the day is the US. A

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popular tale cautionary tale comes from the Chevron Oil Company settlement that occurred in

the mid-nineties. That lawsuit was commenced after a list called "Why Beer is Better Than

Women" was circulated through Chevron’s internal email systems. The Chevron Corporation

ultimately settled the sexual harassment lawsuit for $2.2 million.

Similarly, in 1999, a US Federal Communications Commission employee mistakenly sent a dirty

joke entitled “Nuns in heaven” to 6,000 reporters and government officials instead of the daily

report on actions by the agency that he was meant attach to his email. The FCC immediately

had to issue a wide-apology, calling the message offensive and noting that the employee would

be disciplined.

There have also been a significant number of Canadian decisions, mostly at the arbitration

level, where emails and attachments circulated by employees in the workplace have been

found to contribute to an environment of harassment. Clearly, the Canadian employer has duty

to discipline for inappropriate use of emails where the content is offensive and could be

considered discriminatory. Therefore, employers should have use policies in place and must be

prepared to act when the policies are violated if they want to limit their potential for vicarious

liability.

The importance of an effective computer use policy can be seen in the following decisions. In

these decisions, the employers all had policies in place for email abuse issues. The decisions all

support the employers’ disciplinary actions under these respective policies and the employers

were not culpable for the poor actions of the employees.

Sheet Metal Workers’ International Association, Local 473 v. Bruce Power LP, 2009 CanLii

31586 (On L.R.B.)

The Ontario Board considered a situation where employees had been disciplined, to various

extents, for circulating inappropriate emails. Most of these emails contained attachments

which included photographs, slide shows, videos and cartoons. Some of the emails

contained warnings demonstrating that the sender knew the email was inappropriate, such

as “open with care”; “viewer beware”; “not in front of the children”; “you might want to

delete this one it is pretty graphic”. . The arbitrator found that the employer was justified

to mete out its discipline, which included suspensions without pay.

British Columbia v. BC Government and Service Employees Union (Grierson Grievance),

*2010+ BCCAAA No. 54 (“Grierson”)

The arbitrator was asked to determine if the employer had just cause to terminate two

employees for sending and receiving numerous pornographic and homophobic emails,

graphics and videos at work. The employees were long-standing employees of a section of

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the Ministry of Forests and Range. They were provided with computers and government

email accounts as part of their employment and the employer retained the right to examine

the contents of emails being sent and received by employees at any time. The computer

use policy required that employees not use the technology in any way that “might bring the

public service into disrepute or harm the government’s reputation”. The arbitrator upheld

the employer’s termination decision, stating that the employees had violated the general

standards of conduct expect of public servants and had created a negative work

environment rather than a positive one. The employer had acted correctly in the

circumstances.

British Columbia (Ministry of Public Safety) v. British Columbia Government and Service

Employees’ Union, BCLRB No. B225/2009 (Saunders)

A corrections officer, working in a supervisory role, set up an unauthorized email account

and sent email tips about his workplace to the media. After a lengthy investigation, the

employer discovered who was sending the inappropriate emails and dismissed the

corrections officer. The union grieved the dismissal. At the subsequent arbitration, the

arbitrator held that the dismissal was excessive despite the nature of the emails. After a

further hearing on possible remedies, the arbitrator found that the work relationship could

not be restored and ordered damages in lieu of reinstatement.

Di Vito v. MacDonald Dettwiler & Associates Ltd, 1996 CanLii 3165 (BCSC)

Nicholas Di Vito and Alastair Mathers, employees for a Toronto technology company, were

dismissed for cause for distributing a vulgar prank email which detailed an overweight co-

worker doing gymnastics. Neither of the disciplined employees created the email but had

decided to re-run the joke that they had received twelve months earlier. They forwarded

the offensive email to a number of co-workers. Another employee printed it and hung it on

the bulletin board. When asked by the employer if they were involved in the harassment,

Di Vito and Mathers lied. When the email was traced back to Vito’s and Mathers’

computers, they were dismissed for cause. The judge found that Di Vito’s and Mather’s

behaviour, distributing the offensive behaviour and lying when caught, amounted to a

breach of the implied duties of honesty and faithfulness owed by the employee to the

employer. The judge agreed that the employer was entitled to dismiss the employees for

cause.

The British Columbia Human Rights Tribunal has recently determined that a claim of

discrimination can be based solely on “textual harassment” or cyberbullying.

McIntosh v. Metro Aluminum Products, 2011 BCHRT 34

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In that case, the parties, an employer and employee, briefly had a consensual relationship

which the employee broke off. When she did this, the employer started to send streams of

unwanted sexual messages. This went on for approximately three months and involved

over 200 messages. The text messages continued until the employee finally handed in her

notice to quit the job. The Tribunal found that the messages were “aggressive, provocative

and demeaning” and awarded the employee nearly $30,000 for lost wages, expenses and

damages for injury to dignity, feelings and self-respect.

(ii) Defamation

Employers must also be concerned about potential liability for defamatory statements sent out

via their email and internet. Defamation occurs when a person communicates or publishes

material about a person or organization to another person and that information is likely to

lower the opinion or estimation of that person. There are three essential elements necessary in

order to establish a cause of action in defamation: (1) the words complained off must be

defamatory, (2) the words must have been published to at least one other person other than

the complainant and (3) the complainant must be able to be identified from the words that are

being complained off. Defamation is a strict liability tort.

Defamatory, political or religious statements sent outside the office by employees using the

employer’s email and internet may be attributed to the employer and result in a defamation

challenge. If the employee’s actions can be reasonably connected to the scope of the

employee’s employment duties the employer may be liable.

The British Columbia Court of Appeal has recently found an employer liable for defamation in a

post-termination scenario.

Dawydiuk v. Insurance Corporation of British Columbia, 2010 BCCA 353

The employer was found liable for nominal defamation then a manager ticked an

“inadequate performance” box on a human resources exit form without justification. In

that case, the manager inadvertently committed the defamation by over-circulating an

email with the attached performance evaluation form. While the Court accepted that the

act of completing and sending the form was subject to qualified privilege, it held that the

employer exceeded its privilege because the manager emailed the form to a person who did

not have a proven duty to receive it. The publication of the form by email to persons who

were not entitled to receive it constituted defamation. The employer was liable to pay

damages.

(iii) Time-wasting and personal use issues

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Personal use of the work computer system raises a number of additional issues, including time-

management and whether the employee is detracting from his or her employment duties,

privacy concerns, security issues with the employer’s network and again inappropriate content

issues. There are lots of ways to lose a few hours on the internet, gambling, gaming, sending

personal emails, and visiting chat rooms. Without adequate systems in place to monitor usage,

employer may be completely unaware of what is going on.

Over-use and access to large file such as streaming video can result in the system being slow or

unavailable for business-related applications and may increase the risk of viruses attacking the

system. Further, the distribution and possession (even unwittingly in the employer’s case) of

obscene materials, including child pornography, can attract criminal liability under the Criminal

Code if employees use workplace systems to access, store and distribute such material.

Therefore, employers must exercise reasonably diligence with respect to the employees’

personal internet use.

Also, employers may risk exposure of key confidential information and workplace secrets by

employees, either by accident or deliberately, if employees send electronic files (such as Word,

Excel and Powerpoint) to their own personal web-based email addresses such as Yahoo Mail

and Gmail. Employees might want to work these files at home and inadvertently remove them

from the protection of the employer’s firewall.

Employers must be concerned with employees’ non-work related emails being sent through the

work networks. Many employers permit some personal use of the system for incidental

personal emails. Again employers should have a clear internet use policy in place which deals

with the expectations for personal use of email if this is permitted in the workplace. All

employees should be aware of the expectations of the workplace and the details of that policy.

The employer should monitor the use of the policy and apply it in an even-handed manner to all

employees. Where possible, the employer should apply progressive discipline to employees

who breach the policy and warn them that their behaviour has fallen below expectations prior

to dismissing for cause.

A number of arbitral decisions have determined that in many cases excessive personal use of

email alone will not be a sufficient basis for dismissal of the employees. These decisions

indicate that excessive use does not amount to “theft” of the employer’s work time by the

employee and the excessive use must amount to more mere email excess in order to support a

termination for cause. In these cases, the arbitrators supported disciplinary measures for the

excessive use but found that termination of employment was excessive.

Milsom v. Corporate Computers Inc., 2003 ABQB 296

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The employee was terminated from his sales position after six years of service with the

company. When he sought to improve his notice of termination, the employer changed its

position to dismissal for cause based on his excessive use of personal email being sent from

work. The employer argued that the employee’s daily average of eighteen personal emails

was distracting him from his daily tasks. However, the Alberta judge found that the

employer had overreached and should have practiced progressive discipline, including

warning the employee of its expectations. The judge commented that an employee must

be made aware of the employer’s policy on internet use and given the opportunity to

improve his or her performance.

Public Service Employee Relations Commission v. British Columbia Government & Service

Employees Union, [2003] BCCAAA No. 197

The employee was terminated from his job as an auxiliary officer at a detention centre

for a number of issues which included excessive personal email use. The employer had

notified all employees that the mail system was exclusively for “government related

business”. However, the employee continued to email his girlfriend and sent and

received pornographic images from the work account. The arbitrator found that

excessive email use alone was not sufficient to for the employer to termination the

employment. The arbitrator did acknowledge that if the other grounds of termination

had been conclusively proven, these coupled with the email abuse might have been

appropriate grounds. The employee was reinstated with pay.

Owens-Corning Canada Inc. and C.E.P., Local 728, (2004) 125 L.A.C. (4th) 286

The employee had been employed for eleven years with the employer when he was

discharged for abusing the employer’s internet policy with his excessive personal email

use and inappropriate content, including pornography and racism. The Employer had

become aware of a general climate of internet overuse and had circulated an

information bulletin to all employees stating that the company was adopting a “zero

tolerance” policy and future misuse of the emails could result in termination. When the

employee continued with his pattern of use, he was dismissed. The arbitrator

determined that the employer had been overzealous with it discipline and noted that

other employees had only been suspended for misuse. The arbitrator reinstated the

employee.

However, excessive internet use coupled with sneaky or dishonest conduct has been accepted

as grounds for dismissal for cause. In order to support discipline up to a dismissal, the

employer must have a clear internet use policy that all employees are aware of and the

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particular employee must have behaved in a manner that was sufficiently egregious for the

relationship between the employee and the employer to be irreparable.

Canadian Union of Public Employees, Local 37 and Calgary (City), [2003] A.G.A.A. No. 30

(Calgary (City)) (Graham)

The employee worked in the city’s waterworks units. His responsibilities included

monitoring drinking water safety levels for chlorine. The city’s internet policy allowed

personal use “for occasional obligations without criticism”. The employee had worked

with the city for 23 years when he was suspended and ultimately terminated for failure

to respond to chlorine level alarms on more than one occasion. One alarm lasted for

two hours without him making any attempt to leave the on-line chat room that he was

engaged in so that he could either respond to the alarm or inform his supervisor. The

records indicated that he had spent almost three hours chatting on-line that day. The

Alberta Board upheld the termination stating that it was clear that his personal use

interfered with his job and compromised the reputation and integrity of the employer’s

business goals and expectations. This was sufficient reason for dismissal and his lack of

credibility and honesty had put the health and safety of the City’s drinking water at risk.

Further, he had been previously warned by the City that he must respect the internet

use policy.

Re Ontario Power Generation Inc. and Power Workers’ Union, (2004) 125 L.A.C. 4th 286

The employee had worked at the company for twelve years when the employer discovered

that she had been using its email and internet service to conduct a sideline exotic dancing

business. She was dismissed for cause and she grieved this to arbitration. The arbitrator

noted that she had been otherwise a good employee with a clean disciplinary record, but

held that the employee’s devious use of the email and “sneaky behaviour” in the

subsequent investigation was sufficient to irreparably harm the employment relationship.

Ontario Power Generations and Society of Energy Professions, 141 L.A.C. (4th) 120

(Nairn)

The arbitrator upheld the employer’s decision to terminate the employee for cause for

using company time and equipment for non-work purposes. In this case the employee sent

approximately 155 emails to arrange importing exotic dancers from Eastern Europe and

received 635 telephone calls and made 437 calls regarding the business for a total

telephone time of 48 hours. The employer was alerted to the behaviour by the complaints

of other employees. The employee argued that he made use of his breaks and lunch time

to conduct his business transactions but the records did not back up his position.

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In summary, when dealing with employee misuse of email in the workplace the critical key for

employers is (1) to have an up-to-date computer use policy which sets the use expectations and

which all employees are familiar with and (2) to monitor and apply the computer use policy

across the employees in a fair, reasonable and equitable manner.

3. SOCIAL MEDIA AND SOCIAL NETWORKING

Social media is a collective term used to describe easy ways to create and publish on the

internet. Social networking is generally used to describe how organisations and individuals

share content – text, video and pictures – and create conversations on the web. Social

networking tools include Facebook, Tweeting, YouTube and blogging.

Blogging is the oldest form of social networking. A blog is type of website that is maintained by

an individual who makes regular entries, descriptions of events or other things that are on their

mind. They often include photograph, graphics or videos that are created by the blogger.

Bloggers can use other social medial tools such as Facebook and Myspace to host their blogs.

When this happens the blogs can either be publically available on Facebook or available to

“friends” depending on the blogger’s security choices.

While Tweeting on Twitter has been around since 2006, it has been in the news in recent

months in relation to legal developments and also government use. Recent Canadian tweet

news includes an announcement from the Finance Minister that the March 4 budget will be

tweeted in real time. A full night tweet-a-long from a Vancouver Police squad car in February

and a complete ban of Twitter, emailing and texting from the British Columbia provincial court

on February 24, 2011. The British Columbia Supreme Court and Court of Appeal have yet to

decide on their policies.

Tweeting from court rooms in other jurisdictions is permitted and has occurred in several high

profile cases such as the trial of the Ottawa former mayor Larry O’Brien and in the Williams

murder trial in Ontario. The O’Brien case was the first Canadian criminal proceeding where

tweeting was permitted at the request of the Ottawa Citizen newspaper. Concerns were raised

at that time that information was being tweeted from the courtroom and potential witnesses

who had been excluded from the process could what was being said in the testimonies.

The Williams case raised different concerns. In that case, journalists were simultaneously

watching the lurid details in the court room and Tweeting comments to their newspapers for

publication. The defence lawyers publically criticised the use of Twitter, saying that many of

the tweets were crude and out of context.5

5 http://ipolitics.ca/2011/01/24/russell-williams-defence-team-says-lurid-courtroom-tweets-were-crude-

unnecessary/; http://www.canada.com/story_print.html?id=4153347&sponsor=

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The Canadian Judicial Council, which policies Canada’s 1,100 federally appointed judges, is

looking at how to handle social medial in the courts, including the use by the media, the public,

courtroom staff and even juries.

The UK has gone a step further on February 3, 2011, the UK Supreme Court issued guidance on

tweeting from its court rooms stating that “there is rarely any reason why what is said in court

should not be immediately placed in the public realm”. Tweeting will not be permitted from

cases where there is a formal reporting restriction in place. Also, the UK Parliament has a

Twitter account which permits followers to keep up “an eye on government, debating laws and

approving taxes”. The official Twitter feed is produced by the web team in Parliament.

Facebook is a website where users can join networks organized by city, workplace, school, and

region to interact with their “friends”. Users create profiles which provide public or private

information on them, their photographs, their activities and other features. Users can post

status updates for their “friends” to see, which keeps them connected regarding their thoughts,

actions and locations.

Personal facts, opinions, videos and photographs posted by employees on Twitter, Facebook or

other social networking sites have a habit of trickling back to the workplace. Employers can

face a real challenge where an employee on his or her own right in personal time posts negative

comments about their employer or work situation or posts private information that becomes

known in the workplace.

(i) Pre-screening employees using social media

A June 2009 Ipsos Reid poll found that 56% of all Canadian Internet uses have a profile on a

social networking website. It is well known that many employers have developed a practice of

seeking background information on job candidates on Facebook and running a Google search

when those candidates apply for a job. If potential employees have set low privacy settings on

their information, potential employers can access an abundance of information on that

person’s recreational activities and lifestyle. For example, employers could find out that a

potential employee has five children, enjoys snowboarding and drinking, has recovered from a

serious illness or has a criminal record.

The Code makes it illegal for employers to consider an applicant’s race, gender, age, religion,

sexual orientation, family status, disability or national origin in the hiring decision. Also, it is

illegal to discriminate on the basis of an individual’s political beliefs. Therefore, employers must

remember that any information that is found online must be used responsibly and in keeping

with the Code. Information which is not relevant to the hiring decision or provides details

about protected grounds cannot be used by the employer any more than it could be if that

information had come to the employer in a job interview.

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Background research must comply with the Code, privacy and employment legislation.

Employers should decide whether background searches on social media are necessary and if so,

consider informing all applicants that this will be done. If the employer decides to use searches,

then the policy should be applied to all applicants and not just applicants who raise suspicion.

Further, employers can limited their potential for problems caused by pre-screening by making

sure that the person or persons who perform the searches are not the persons who make the

hiring decision. The person or persons who research the applicant can screen out inappropriate

information and provide a summary of relevant information only for the hiring committee. The

employer should create a business record that confirms that the search was objective and

relevant. This will assist the employer to show that any hiring decision was not based upon a

protected ground.

(ii) Off-duty employment issues

Social networking raises difficult legal issues for all involved. Often the cases do not fit neatly

into the framework of on-duty conduct that can be considered within the disciplinary reach of

the employer. Therefore, employers are wrestling with the difficult issue of whether they can

restrict or discipline employee internet use when that employee is using the social media when

he or she is off-duty.

Due to the pervasive and public nature of this technology, arbitrators have determined that

when employees cross the line and use Facebook or other social networking tools to derograte

or openly criticise their employer, the employer may be justified in terminating the

employment relationship even when that conduct did not occur at work. There have been a

number of decisions where the off-duty internet use has resulted in discipline up to and

including dismissal.

Lougheed Imports Ltd. et al. and United Food and Commercial Workers International

Union, Local 1518, BCLRB No. B190/2010

In a recent precedent setting decision of the British Columbia Labour Relations Board, a

termination of two employees who had used Facebook to made derogatory comments

about their employer from home was upheld despite the employer not have a clear social

networking policy. The two employees of a car dealership made derogatory and

threatening comments about their colleagues, managers and employer on Facebook. The

posts stated among other things that the employer was a low-life scrum bag, a crook, and

“out to hose people.” The Board held that the employees had clearly identified their

employer and supervisors in a very public forum. Further, the comments were serious,

offensive, insulting and disrespectful and that the employees’ conduct on Facebook was

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sufficiently egregious and offensive to support their dismissal for cause as if the comments

had been made at work.

EV Logistics v. Retain Wholesale Union, Local 580, [2008] B.C.C.A.A.A. No. 22

In this case, the employee worked as a forklift truck driver on the night shift. He set up an

anonymous blog from his home computer which identified EV Logistics as his employer. The

blog contain racist and pro-Nazi rants. Another employer informed the employer, by

anonymous email of the URL of the blog and noted discomfort at working with someone

who was posting this kind of commentary. The employer reported the blogger to the RCMP

and subsequently terminated the employee’s employment as a result of the posting of

offensive, racist and hateful materials. The employer took the position that by identifying

the place of employment and posting photographs of employment activities, the employee

had harmed the legitimate business interests of the business. The arbitrator decided that

the blog had adversely impacted the employer’s legitimate business interests and that

justified disciplining the employee. However, the arbitrator decided that termination of

employment was excessive and reinstated the employee without compensation for any lost

wages.

Government of Alberta v. Alberta Union of Provincial Employees,

http://onlinedb.lancasterhouse.com/images/up-Ponak_GovtofAlberta.pdf

A provincial government employee in the Alberta Public Service was dismissed when the

employer discovered that her blogs contained unflattering comments about a number of

her co-workers and management, referring to them as "imbeciles", "idiot savants" and the

"lunatic-in-charge". The employee started blogging on the advice of her doctor in order to

help her copy with stress. Her blog, “Running Girl” identified the employer by name,

including identifying which department of the government she worked for. The employer

dismissed the blogging employee based on the contents of her posts, her lack of remorse

when questioned on them and a lack of understanding as to why the blog was so offensive.

The employer claimed that the blog undermined the employment relationship irreparably.

The arbitration board deciding the case said that while she had a right to create personal

blogs and hold opinions about colleagues, publicly displaying those opinions can have

consequences for the employment relationship. The board said that the dismissal was

justified.

Wasaya Airways LP and ALPA (Wyndels), (2010), 101 C.L.A.S. 389 (Marcotte)

In Wasaya Airways, the employer terminated the employment of one of its pilots for

posting a comment on his Facebook “wall” that disparaged First Nation communities and

the corporation. The airline primarily served First Nations communities. The arbitrator

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upheld the dismissal and focused on the fact that the off-duty conduct had posed and real

and potential harm to the legitimate business interests of the employer.

Re Municipality of Chatham-Kent and Canadian Auto Workers, Local 127, (Williamson),

[2007] O.L.A.A. No. 135

The employee worked in a retirement facility and blogged in her recreational time. In her

blog she posted comments that undermined the management of the work facility and

discussed particular residents. She also posted photographs of herself with the residents

without their consent. The arbitrator upheld her termination for insubordination and

breach of the employer-employee confidentiality based on the information in the blog. He

stated that the blog comments were “insolent, disrespectful, and contemptuous of the

management and an attempt to undermine the reputation of the management at the

Home.” They constituted insubordination.

As a good practice, employers should remind employees about the potential consequences that

inappropriate social networking posts can have on the workplace, the employer’s business

interests, and their employment in terms of discipline, or potentially, termination. The

employer should alert the employees that it runs periodic screens of its name or business

interests through Google and other search engines.

If an employer learns about problematic Facebook or other social media posts created by the

employee, the employer should consider making proper documentation of the evidence on the

Facebook page, such as by way of screen shots, so that a record exists which proves the date,

time and content of the post.

(iii) Duty to accommodate?

Employers should be aware that an employee could raise the argument that the employer has a

duty to accommodate him or her if that employee is facing a dismissal for issues including

excessive use of email , social media and the internet. The principal of the duty to

accommodate is straight-forward: employers and unions are required to make every

reasonable effort, short of undue hardship, to accommodate and employee who comes under a

protected ground of discrimination within human rights legislation. Since mental disability is

one of the protected grounds, the employee may argue that the “internet addiction” is a

symptom of mental illness.

While there have been no precedent setting decisions on “internet addiction” or whether an

accommodation could be required, there is a fair amount of scholarly debate on whether

“Internet Addiction” should be included in the DSM-V (May 2013). The American Journal of

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Psychiatry has described internet addiction as “a compulsive-impulsive spectrum disorder that

involves online and/or offline computer usage”.6

One Canadian arbitration decision has appeared to accept that there may be a causal

connection to mental illness and internet addiction or abuse. However, no case has clearly

prescribed that internet addiction alone requires accommodation.

City of London and C.U.P.E. Local 101 (M.D.), (2001), 101 L.A.C. (4th) 411

In the case, the employee worked in the Ontario Works division of the City and was

terminated for viewing pornography from his workplace computer. He had been employed

by the City for ten years and had never been disciplined for any performance issues

previously. He admitted to his employer that he viewed the pornography in his lunch break

but also at times during work hours. He actually would keep the pornography minimized on

his toolbar through the day. On investigation, it was found that the employee spent

approximately two hours a day while working, viewing pornography. The employee had a

history of mental illness and had been diagnosed as a paranoid schizophrenic. He argued

that his addiction to pornography was causally related to his medical condition. The

arbitrator found that the viewing of certain sites was causally related to the medical

condition but even so the employer had cause to discipline for the unwarranted use.

However, the arbitrator found that discharge was excessive and reinstated the employee

with a five-day suspension and the requirement that he employee continue upon a course

of prescribed therapies to control his inappropriate actions.

Therefore, if an employee does raise the internet abuse as an addiction, the employer would be

advised to at least consider on an individual basis whether there was supporting medical

evidence and if so, whether an accommodation would be possible without undue hardship to

the employer.

4. SPECIFIC SOCIAL MEDIA CONCERNS FOR LOCAL GOVERNMENTS

The use of social media can also raise specific issues for local governments, including board

members and councillors. Many local governments have adopted Facebook sites as part of

their marketing plans. These civic Facebook pages permit Facebook users to follow the current

events of that local government and potentially to post on the municipal “walls”.

Local governments should consider liability potential if comments are posted by the public on

the government Facebook site that contain inappropriate content. In order to address this,

many local government Facebook profiles also publish “Guidelines” which request that public

6 http://ajp.psychiatryonline.org/cgi/content/full/165/3/306

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input be respectful. The guidelines set some carefully worded boundaries that work in

conjunction with the boundaries already set by Facebook. As part of their guidelines, local

governments should reserve the right to refuse to post or remove offensive posts at any time.

A regular procedure for checking the status of posted information is also recommended to

ensure that inappropriate posts are removed in a timely manner. Local government may want

to consider Charter obligations when they draft these policies.

Local governments using Facebook should also consider their document retention policies and

procedures and determine whether they are required to retain or would be well advised to

retain and make a record of the various Facebook postings, particularly anything controversial.

Additional care must be taken when staff, councillors or board members are writing for their

local government’s Facebook profile. Material published by the local authority as an

organisation is, by its nature, restricted in terms of content. It should not contain party political

material and, in relation to other material, should not seek to persuade the public of a

particular view, promote personal images of councillors or their individual proposals, decisions

or recommendations, or personalise issues. Extreme care must be taken to make sure that

there is no bias or pre-determination expressed on planning or licensing matters on the

Facebook profile. Anything which could suggest that the board or council does not have an

open mind when determining planning or licensing application could be used to suggest bias

and potentially invalidate a subsequent board or council decision.

Local governments should also consider whether to limit links to materials that do the above.

For example, should the civic Facebook page link to individual councillor or board member’s

profile or blog?

Many local government politicians are utilizing social networking, most particularly Facebook,

as a communication tool in their general communication plans and also in their election

campaigns. In the main, local government politicians have the same legal duties online as

anyone else, but failures to comply with the law or letting private life details enter the public

eye can have serious and public consequences for them. For example, former NDP candidate

Ray Lam dropped out of the election race in Vancouver-False Creek in April 2009 when his

Facebook profile and posted photographs drew media criticism. He resigned because the

controversy over the five-year-old photographs could have negatively affected the election

campaign.

Another area that is gaining some popularity for local governments is Twitter. A number of

local governments have started using Twitter to broadcast timely information on the City’s

recycling and waste program, providing agendas for meetings, information on roads and

updates on what is happening in town and for use in emergency programs. While this offers

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another great way to get information out to the public and interested stakeholders, local

governments should take a moment to consider whether their use policies and document

retention procedures are sufficient for the technology and potential challenges. Local

governments should decide who is responsible for the Twitter content and retain veto control

of the information.

In summary, the new social media do present exciting new ways for local governments to reach

people in their communities. Social media offer user friendly, fast and engaging ways to reach

out, provide useful information and building stronger relationships within the community. The

key to the success for local governments is to have a strategic plan which sets out

responsibilities and guidelines for use so that liability is limited.

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5. PRIVACY CONCERNS – a brief overview

As employers respond to employee abuse of electronic communications, the tensions between

management rights and employee privacy rights increases. Generally speaking the employee’s

right to privacy will be weighed against the employer’s legitimate business needs and the

reasonableness of the expectation of privacy in the circumstances.

Employee rights for privacy originate with concepts from the criminal law, the tort of invasion

of privacy and the British Columbia Privacy Act. The nature and degree of personal privacy is

that which is reasonable in the circumstances.

Several Canadian decisions have ruled that employees who use the employer’s system to send

and receive email and to post messages to discussion boards have no right to privacy when

using the employer’s internet facilities. The employer’s ownership of the computer and the

system has been accepted as strong evidence by the courts and arbitrators alike that the

employee does not have a reasonable expectation of privacy over the data stored on that

computer.

Naylor Publications Co. (Canada) and Media Union of Manitoba, Local 191 (Re), [2003]

M.G.A.D. No. 21 (Petiz)

In that case the employee had sent offensive email through the work system to her spouse

and friends. Her union argued at arbitration that the emails were “private” and therefore

that the employee was less culpable and deserved less discipline. The arbitrator stated at

paragraph 140:

Like it or not technology creates real limitations on privacy and security of an e-mail

message. In Camosun College and Telus Mobility, cited above, arbitrators took note of

the potential for uncontrolled dissemination. The Union in the present case analogized

to writing a letter for venting purposes and leaving it at your desk, or taking your

troubles home to a spouse or friend. However, e-mail users ought to know that when

they put out sensitive or offensive material into cyberspace, they can never be sure

where the message will ultimately come to rest. Today, if a person needs or desires a

private conversation, she must carefully consider how to ensure true privacy. Expressing

deeply personal thoughts over an employer’s computer system is surely not a good

choice. At times, notwithstanding the inconvenience, it may be preferable to wait until

there is an opportunity for face to face communication.

Poliquin v. Devon Canada Corporation, 2009 ABCA 216

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The employee in that case was terminated for, among other things, transmitting

pornographic and racist material over the company’s network using the company’s

computer in violation of the company’s Code of Conduct. The employee had worked with

the company for 26 years and agreed that he had read and understood the company

computer use policy. The Alberta Court of appeal stated that employees had no reasonable

expectation of privacy in their workplace computers at para. 45:

Employers have the right to set the ethical, professional and operational standards for

their workplaces. Doing so not only falls within an employer’s management rights, it also

constitutes an integral component of corporate good governance. The workplace is not

an employee’s home; and employees have no reasonable expectation of privacy in their

workplace computers. It therefore follows that while employers may permit employees

limited personal use of workplace computers, the employer is entitled to restrict the

terms and conditions on which that use may be permitted.

The Court went on to say that “an employer is entitled not only to prohibit use of its

equipment and systems for pornographic or racist purposes but also to monitor an

employee’s use of the employer’s equipment and resources to ensure compliance (para.

49).”

The Ontario Court of Appeal has recently decided an interesting privacy case where it

considered different privacy expectations when dealing with the employer’s right to monitor its

equipment and the police’s right to access the material the employer finds on the equipment.

R. v. Cole, 2011 ONCA 218

In that case the Court of Appeal ruled that police breached the privacy rights a teacher

under section 8 of the Charter of Rights and Freedoms when it searched the personal

information stored on his work laptop without a warrant. The School Board gave the

teacher a laptop to use in his teaching role. A computer technician employed by the Board,

in a routine maintenance of the overall system, found a file on the laptop that contained

explicit images of a child. The technician took a screen shot and some picture of the images

which he later copied to disk. The principal seized the laptop and another technician copied

temporary internet files from the laptop to a disk. The Board handed the laptop and disks

to the police, who searched the laptop without a warrant, and charged the teacher. The

Court of Appeal ruled that the teacher had a reasonable expectation of privacy in the

personal use of his work laptop and there was no clear policy that stated the Board would

monitor the laptop use. However, the privacy was modified by the technical maintenance

policy and the teacher knew that the Board technician would access the laptop at various

times. In that regard, the teacher had no expectation of privacy. The Court of Appeal found

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that the Board employees all acted within the scope of their duties and did not engage the

teacher’s privacy rights. However, the Court found that the police search without a warrant

did violate the privacy rights and evidence was excluded from the case. The result was that

the criminal case may be weakened by the reduction of the evidence.

The British Columbia Privacy Commissioner, Elizabeth Denham spoke on privacy concerns and

most specifically on privacy and social networking on the Western Canada Labour Relations

Conference on January 18, 2011.7 In this speech, she addressed the four-part test that

commissioners and the courts apply when they are determining if a private sector’s employer’s

actions in monitoring employee conduct have been reasonable. The test is:

Is the monitoring demonstrably necessary to meet a specific need?

Is the monitoring likely to meet that need?

Is the loss of privacy proportional to the benefit gained?

Is there a less privacy intrusive way of achieving the same end?

She reiterated that employers should tell employees that they will be monitoring use and what

triggers surveillance before they act on any findings.

Union employees may have additional protection of their privacy rights through either express

or implied clauses in the respective collective agreement. Collective agreements often contain

clauses that mandate that work rules must be reasonable, management rights are restricted

and by recognizing a right of privacy based on “the common law of the unionized workplace”.8

Collective agreements may prohibit certain surveillance in the workplace such as listening and

watching employees as they work.

Further, local government employers must additionally be cognizant of the Freedom of

Information and Protection of Privacy Act (“FIPPA”) requirements. Since 1993, public bodies in

BC, including Crown corporations, health authorities, school boards and municipalities, have

been subject to FIPPA. FIPPA provides a general right of access to records in the custody or

control of a public body. Information posted to social networks through the workplace pages

will be subject to the “access” provisions of the FIPPA.

Additionally, a recent Ontario privacy case considered whether access requests under that

province’s Municipal Freedom & Protection of Privacy Act extended to having to provide

information on personal emails sent by government employees through the workplace email.

City of Ottawa v. Ontario, 2010 ONSC 6835

7 http://www.oipc.bc.ca/pdfs/speeches/SocialNetworkingintheWorkplace(Jan2011).pdf

8 Labourers’ International Union of North America, Local 635 v. Prestressed Systems Inc. (2005), 137 L.A.C. (4th) 193. (Lynk)

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In this case, the City permitted its municipal employees to use the email system for incident

personal use, subject to certain conditions set out in the computer use policy. The

employee used his workplace email to send and receive personal emails that were

completely unrelated to his work but rather related to volunteering with the Children’s Aid

Society (“CAS”). He put all his CAS emails in a separate file folder but stored this folder on

the City’s email server. An access request was made under the freedom of information

legislation for disclosure by the City of all “emails, letters and faxes” sent or received by the

employee to or from anyone at the CAS. The City took the position that the emails were not

“within its custody or control”. The court agreed with the City and determined that emails

unrelated to government business cannot be subject to disclosure for other members of the

public even where those emails are stored in government’s computers. The judge stated

that:

In my view, it is not reasonable for emails belonging to a private individual to be subject

to access by members of the public merely because they are sent or received on a

government owned email server. That is not a sensible or logical result whether as a

question of fact or a question of law. The implications for the many thousands of

employees who work in government offices across this country are staggering. [para.

20]

The judge acknowledged that any government employee worker who works in an office

setting will have stored, somewhere in that office, documents that are personal and have

nothing to do with his or her job. The fact that they are stored in the government office

does not make them disclosable pursuant to the freedom of information legislation. He

found that this applied also to personal emails stored on the system. Ontario’s privacy

commission planned to appeal this ruling to the Ontario Court of Appeal.

In British Columbia, the FIPPA also imposes specific statutory requirements on a provincial

public sector body's collection, use and disclosure of personal information that require

attention when monitoring employee computer use. Section 31.1 provides that the protection

of personal information sections apply to employees, officers and employees who are service

providers. FIPPA is intended to prevent, among other things, the unauthorized collection, use

or disclosure of personal information by public bodies.

Reviewing blogs and Facebook posts of employees, particularly those where the posting were

made off-site, could conceivably be a collection of personal information of the employee. Using

the information for discipline could be a use of this personal information that may be offside

section 31.1. However, if the information is publically accessible, the employer can likely rely

on implied consent to the collection.

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Therefore, local governments should be alive to privacy concerns when setting up and

monitoring computer use policies. Local governments must strike a balance between managing

their workplaces and employee privacy rights when addressing and monitoring computer use

policies. Monitoring should be based on legitimate workplace concerns and must be

reasonable. Over-intrusive measures may not only be off-side the law but will also create a

work environment where employees feel stressed, insecure and targeted.

6. TOOL BOX FOR TECHNOLOGY

The employer’s first line of defence when dealing with email and internet use and abuse is to

have a clear policy in place which sets out the workplace expectations in relation to appropriate

and inappropriate use of the technology. The policy should establish best practices and address

workplace privacy issues.

Ideally, employees and unions can be collaboratively involved in crafting or updating the policy.

As the law develops in this area, policies should be updated. Good communication and

respecting the rights of the employees will assist employers to create an atmosphere of mutual

understanding regarding policy. Buy-in from the employees should assist with compliance

issues and encourage an overall positive use of the technology from the employees.

Employees must be familiar with the contents and expectations of the computer use policies

and their connection to other communication policies and employment obligations. Many

employers ask their employees to sign off on a document which confirms that they have read

and understood the contents for the computer use policies. These are filed with the

employee’s employment documents.

Many employers chose to have guidelines and codes of conduct for email and internet use and

a separate social networking policy. Since, social networking does pose different privacy

concerns clear rules, it is a good idea to have a separate policy which deals these specific issues

and clearly communicates the employer’s position and the employees’ responsibilities to the

employees.

At a bare minimum, the email and internet policy should contain the following elements:

A clear statement that the Internet access, including email, is provided for business

purposes. The policy should make it clear to employees the types of activities that are

intended to be covered by the policy i.e. email, internet use, social media. The policy

should provide that the technology is only to be used in a lawful and ethical manner and

that all users are expected to exercise good judgement.

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An outline of the unacceptable uses of the Internet, including visiting any sites,

downloading material or sending email which contains inappropriate content or which

contains material which is defamatory, humiliating or demeaning towards a group based

on their sex, race, national origin, sexual orientation, physical characteristics or any

disability.

If any personal use of the Internet and email is permitted, the permissible uses and any

restrictions on the timing or duration of such use should be set out.

If any personal use of the Internet and email is permitted, some guidelines or

restrictions on retention and storage of the personal information on the workplace

system.

A statement that computer use is subject to monitoring and that the employee should

have no expectation of privacy with respect to their workplace use.

A requirement to respect all copyright, patent and trade-mark rights, including a

prohibition on downloading or transferring material without permission, which may

constitute a copyright infringement.

A requirement to scan for viruses.

A prohibition on uses which compromise system integrity or may degrade system

performance.

A prohibition on using the Internet or email for political activities, or solicitation of funds

or otherwise advertising goods and services which are not authorized by the employer.

A warning that any violation of the policy will result in discipline, up to and including

termination of employment.

At a bare minimum, the social networking policy should contain the following elements:

A statement that other employee communication policies and existing obligations apply

to the social networking policy.

If the employer expects employees to use social networking on behalf of the employer

in a business capacity, a statement setting out the specific rules that should be followed

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when using the social networking. Clarify that the employee should not disclose

confidential or confidential business information (including photographs without

consent) nor discuss personal information of co-workers.

A statement on the employer’s position of employee use of social networking within the

workplace. If the employer intends to monitor employees’ use of social networking

through the workplace, the employer should notify the employees of this in the policy.

A reminder of the nature of social networking and the fact that any communication on

social media can become public. The policy should be clear that the employee’s duties

of confidentiality and obligations to the employer do not end when the employee leaves

the office at the end of the day. The policy should remind employees that these duties

can be breached by inappropriate off-duty use of social networking.

Enforcement and monitoring of the policies should take place periodically to ensure that the

policies are (1) complied with and (2) applied to all employees in an even-handed manner.

Employees should be aware of particular uses that may trigger monitoring and have clear idea

of what the employer is monitor for i.e. legitimate business concerns, time spent, appropriate

use etc.

When the employer discovers breaches of its computer use policies, discipline is required. For

this, the employer must take into account the seriousness of the breach: A breach involving an

employee who sends one inappropriate or insubordinate email with limited circulation should

be treated differently from an employee who has spent several hours per day visiting

inappropriate websites or widely circulates offensive materials about a co-worker. Disciplinary

actions should be delivered promptly and consistently.

The main elements for the employer to consider when determining an appropriate disciplinary

measure include:

The content of the employer’s email and internet policy and social networking policy;

The consistency with which the employer enforces its policy;

The nature and circulation of the material the employee has sent out;

The employee’s length of service and disciplinary record,

Whether the employee is remorseful for his or her behaviour;

The provisions in the collective agreement for discipline; and

The degree of misappropriation of the company time and resources.

Progressive discipline is always the most fair and effective for employer and employee alike.

The progressive discipline program for union employees will be set out in the collective

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agreement. It usually involves a system based on verbal and written warnings, suspension and

termination. The employee is given the opportunity to stop the unacceptable behaviour within

a monitored timeframe and will be made aware of the consequences if the prescribed changes

are not achieved. Employers should document their disciplinary measures in the event that a

later grievance is filed.

In cases where the misconduct is sufficiently egregious, certain steps of the discipline may be

skipped. Employers should investigate and confirm they have sufficient grounds and concrete

evidence of the employee’s behaviour before they take this step. The employer will need to

show that the employee is the party responsible for the misuse of the computer system. The

employer will need proper documentation that proves the date, time, content and author of

the post.9

7. CONCLUSION

In summary, as the social media and the internet changes the workplace, employers and

employees will face new workplace challenges. As the law develops around the technologies,

employers will need to update and modify their workplace place policies and communicate

their expectations to their employees. The key for employers is to have an up-to-date policy,

communicate the policy clearly to the employees, management the policy and computer use

fairly and reasonably and to act promptly and fairly when breaches are discovered. If the

policies are clear and the employees understand their responsibilities and rights within the

policies, both employers and employees can work in unison to enjoy this brave new world with

a minimum of conflict and liability.

9 Alberta Distillers Ltd. v. United Food and Commercial Workers, [2009] A.G.A.A. No. 46: In that case the employer dismissed an employee for

posting harassing comments about other employee’s on a different employee’s Facebook wall. The arbitrator did not find the comment alone

was sufficient evidence that the impugned employee had written it.