Social Networking Websites
Websites such as Facebook, MySpace, Twitter and personal blogs have presented new workplace issues for employers in terms of communications to third parties. Some of the issues are in relation to breach of confidentiality, insubordination, damage to the employer’s reputation, defamation, and vicarious liability to the employer for inappropriate content that has been posted by an employee.
A number of social networking websites encourage participants to disclose personal information about themselves, including the identity of their employer, their jobs, and the manner in which their jobs are performed. There have been countless examples of cases in which employees have disclosed confidential information about the employer, customers/clients, and even other employees (managerial and non-managerial).
An employee who makes improper disclosure of customer identities, customer buying habits, patient diagnoses, price lists, marketing/business strategies, target markets, passwords to workplace systems, financial information, for example, can seriously prejudice the employer and the viability of the enterprise.
It is imperative that workplace policies be developed in order to address Internet communications to third parties, about the employer and its workplace. There must be considerable emphasis placed upon employees’ confidentiality obligations. Orientation/education should ideally be provided to employees to ensures that they clearly understand the obligation and the fact that a breach could lead to immediate discharge and even possible legal proceedings.
Employees who are privy to sensitive, confidential information, including client information, marketing information, pricing, or proprietary information that is not in the public domain (inventions, creations, etc.) should be required to sign “non-disclosure agreements” which further emphasize the prejudice and the damages that could be suffered by the employer in the event that improper disclosure were made (directly or indirectly).
There have been cases in which employees have communicated disparaging information in relation to the employer’s managerial personnel, and/or to the employer generally on both blogs and social networking websites. Once such information has been posted, it becomes accessible to other employees, friends and family of the employee, and possibly to competitors. The dissemination of such information has the potential to adversely affect the employer’s reputation and the ability of its management to properly manage operations.
Depending upon the content of what is posted, the communication of such information can constitute insolence or insubordination even though the communications take place outside of an employee’s regular hours of work. If the employer can demonstrate that there is a connection between the conduct in question and the employee’s place of work, the employee can be disciplined if not terminated.
In a recent decision of the British Columbia Labour Relations Board, the Board found that an employer had just cause to terminate two employees who posted comments on Facebook that were critical of the employer and other employees. The terminated employees argued that their terminations constituted a response to the employees’ support of a union organizing drive. The Board rejected this argument and also dismissed privacy related claims by the dismissed employees because of the large number of Facebook friends (including other employees) that they each had on their Facebook page.
Employees must be educated and made to understand that postings on blogs, e-mails, and on social networks are not “private” and have the potential to be redistributed to other third parties over which the employee has no control. A simple “Google search” of the victims name will quickly disclose inappropriate communications that have been disseminated. As such, the risk of prejudice and economic harm to the employer that results from the initial communication is exacerbated.
“Blogging” is the term that is used in describing a website at which people can post their personal thoughts, views and opinions. Blogs have become a very popular means by which individuals can communicate with the outside world. Google’s “Blogger.com” site attracts more than 15 million visitors each month – more than many newspaper websites attract. As such, a blog can attract a considerable following of readers.
From an employer’s perspective, the concern with blogs is that they may disclose confidential information that should not be revealed. Disgruntled employees can use blogs to protest their workplace, other employees, managers, and the employer’s enterprise generally. The unfortunate part is that a comment on a blog can leave a permanent “footprint” for others to see.
If an employer learns of an inappropriate blog communication that adversely affects the enterprise, there are a number of strategic responses that can be pursued. A response can be posted by the employer on the website which accurately sets out the employer’s position and which also puts the blogger and anyone else who disseminates the inappropriate blog on notice that a legal proceeding may be commenced.
While an employer cannot prevent employees from blogging, the employer can establish reasonable parameters within which an employee may blog without engaging in employment misconduct. Once again, it is imperative that an employer establish clear policies with respect to Internet blogging communications and such policies should indicate that employees may be subject to discipline and/or legal proceedings in the event that they post damaging/prejudicial material on a blog.
Blogs, regardless of whether they are prepared on or off company time may attract discipline. If an employee’s misconduct occurs outside of work time but yet detrimentally affects the employer’s reputation, or if the misconduct renders the employee unable to effectively perform his/her employment duties, or if it causes other employees to refuse to work with that person, or if the employee’s off duty misconduct inhibits the employer’s ability to manage and direct its operations, the blogging employee can be disciplined (including up to the point of termination, depending upon the circumstances).