The ever-growing phenomenon of user-generated web content has increased the potential that an employee’s activity outside the workplace could negatively affect their employment relationship.
Generally, what employees do on their own time is their affair. Employers must respect the legal rights of their employees to create and participate in social media platforms, including blogs, wikis or online social networks.
However, activities in and outside the workplace that affect job performance, the performance of others or the rights and privacy of others can be potential grounds for disciplinary action, up to and including termination of employment.
It is the responsibility of employers to ensure the rules governing the use of social media are clear and widely understood. This means educating staff on a ‘responsible use of technology’ policy or code of conduct and (hopefully) having each person acknowledge their responsibility by signing a form.
Generally, such a policy should be detailed and understandable, explicitly outlining the type of permissible conduct and that which will attract disciplinary action. It should convey to employees that they have a responsibility to use all technology, including the Internet, computers, networks, software and the e-mail system, in a responsible, productive and professional manner. Employees should also be informed they are responsible for the content of all information communicated in a social media platform or medium such as text, audio or images.
In particular, such policies may consider:
- Reminding employees that the employer monitors online communications and has the right to inspect and monitor any computer system and the use of such technology.
- Reminding employees they do not have a reasonable expectation of privacy with respect to work technologies such as e-mail and the use of voicemail, even when this use is restricted to business matters and the information is stored in company computers.
- Reiterating employees’ duty of loyalty to the employer.
- Reiterating any applicable policies concerning harassment, intellectual property, computer use, conflicts of interest and privacy.
- Outlining permissible conduct for employees.
Conduct that will attract disciplinary action should be explicitly outlined. Examples include:
- Creating, distributing or accessing illegal, offensive, pornographic or inappropriate materials or sending defamatory, abusive, obscene, profane, threatening or racially offensive messages.
- Posting material that may violate the confidentiality obligations of the employer or the privacy rights of other employees, including employer or client information, photographs or videos of staff, financial information and development information.
- Making inappropriate references to the employer or colleagues in computer-related media such as social networking sites, blogs, web pages or e-mail.
- Conducting business activities that are unrelated to the staff member’s duties and responsibilities while at work.
- Using company-owned resources for social networking or blog activities while at work.
- Advertising or soliciting, including advertising personal services.
- Downloading, storing or sharing media files, including music or video files, on the employer’s computer system that are illegal, offensive, obscene, inappropriate or not intended for the employer’s purposes.
It should also be stated in the policy the same principles and guidelines that apply to employees regarding social media while at work apply to the activities of employees online, including blogs, websites, wikis, user-generated video, and audio and social networks.
To be most effective, any policy governing the use of social media should be continually and openly reinforced, with regular reminders about the consequences of breaking the policy.
Lisa Cabel is a partner in the Toronto office of Borden Ladner Gervais LLP. Lisa practices in the area of labour and employment law. She can be reached at 416.367.6217 or [email protected].