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Social Media and the Workplace – Surfing without a (Law) Suit

“What’s on your mind?”

If you’re one of the 1.13 billion Facebook users in the world, you were asked this question today when logging on to your account. Did you answer? Were you honest? Were you wary of the permanent nature of online posts or the watchful eye of an employer? When emotions run high (hello, US Election) it’s difficult to bottle up that post about how you really feel.

While most people can appreciate that blatantly harmful posts about their employer may get them fired, there are some areas that are less clear:

Employees should be aware that conduct outside of the physical workplace, which is deemed by the employer as incompatible with continuing an employment relationship, may be grounds for termination. Even where comments are seemingly unrelated to the workplace, employers have taken action. You may recall when Rogers Sportsnet dismissed a Toronto Sports Anchor after he tweeted his opinion on same-sex marriage. The Human Rights Commission subsequently upheld the decision to dismiss.

The responsibilities when using social media however are not one sided. Employers need to be mindful of their restrictions and obligations as well.

At one time screening prospective employees was limited to speaking with people named as a reference. Nowadays social media reviews, under limited circumstances, can be employed. Under Canada’s Personal Information Protection and Electronic Documents Act employee personal information can only be collected without consent if notice is given to the person and it is reasonably required for the establishment, management or termination of the employee relationship. Some employers will therefore seek permission to access a person’s social media account and request log in information.

If an employer does perform an online search or is permitted access to a personal online account, it must be cautioned on what information it relies upon to hire (or not hire) the individual. If the information used to make a hiring decision is related to a prohibited ground under the Ontario Human Rights Code (race, sexual orientation, family status, religion etc.) that employer is at risk of defending against a claim of discrimination.

If you’ve ever perused a corporate social media account, chances are you’ve come across offensive customer comments, some even targeting individual employees. Earlier this year in a labour ruling involving the Toronto TTC, the arbitrator held that in failing to protect its workers from harassment on the company’s Twitter account, the TTC had contributed to a hostile work environment. The arbitrator suggested the TTC should have asked customers who posted discriminatory tweets to delete their posts, blocked the user, or asked Twitter for assistance in deleting the post.

Venting about feelings or stating a controversial opinion used to be something that was done primarily in private conversation. As social media interacts with work-life more than ever before, it is important for both employees and employers to consider how our justice system has responded to situations next time you press send, post or tweet.