Blog - Facebook - MySpace - YouTube: Four
words that have not only changed today’s lexicon, but have also
created new issues for today’s employers. Incidents of “blogging
gone bad” are steadily appearing in workplaces. Nintendo, for
example, recently fired a contractor for posting on her blog (“The
Daily Weed”) that her friends perceive her to be a “pothead” and
that one of her bosses is a “frumpy” woman who provides
her with “a new excuse to drink heavily”. Delta Airlines
fired one of its flight attendants for posting pictures of herself
on her blog, under the alias “Queen of the Sky”, dressed
in the company’s uniform and draped across airplane seating.
Not all employee blogs negatively affect the employer. Some
blogs may actually enhance the employer’s goodwill
through positive comments. Starbucks has made the most of
the blogging craze by creating its own Facebook page.
How then should employers deal with employees who post their
thoughts, observations, and opinions about the workplace
on the Internet?
1. Know that basic principles of employment law
will apply
Employers should know that although the world of Internet
blogging is new, the basic principles of employment law are
well-established. Posting comments on the Internet that conflict
with the employee’s duties of loyalty and fidelity,
or the duty not to disclose the employer’s confidential
information, will be grounds for discipline up to and including
termination.
A recent Ontario decision provides a useful illustration.
In that case, a caregiver with 8 years of service grieved
her dismissal for posting information on, and pictures of,
the care facility’s residents on her personal website.
The caregiver referred to some residents by name, and also
commented on being “blackmailed by management” and “underpaid
for all [her] overwork”. In upholding the dismissal,
the arbitrator concluded the caregiver had breached her duty
to keep resident information confidential and had undermined
management’s reputation and authority.
Whether termination for blogging will be upheld will, however,
always depend upon the unique facts of each case. In January
of this year, a British Columbia arbitrator replaced a termination
with a lengthy suspension when the employee had posted blogs
containing offensive and racist entries, and had identified
his employer on his website. In overturning the termination,
the arbitrator cited several mitigating factors, including:
(i) the employee’s discipline-free record; (ii) the
employee’s immediate withdrawal of the blog when confronted
and posting of a sincere public apology on his website; and
(iii) the absence of a blog reference to his employer, or
his employer’s customers, services, and other employees.
2. Consider creating a blogging policy
Often employees view their blogs as private places to rant
and rave, without fully appreciating how their blogs can
jeopardize their employment. Creating a blogging policy will
help ensure that employees are aware of their obligations.
The basic blogging policy should alert employees that posting
comments detrimental to the employer may be grounds for discipline
up to and including dismissal, even if posted off-duty. The
policy should also advise that the employer may monitor the
Internet for compliance with the policy. Many employers block
access to blogging websites from the workplace, such as Facebook,
MySpace, and YouTube. This will foster productivity at work,
and may help reduce the chances of on-duty misconduct.
3. Contact website administrators
Administrators of blogging websites are keenly aware of
their exposure when users post comments that are potentially
defamatory. Most contracts between administrators and users,
in fact, will include provisions prohibiting the user from
engaging in such conduct. When an employee’s blog has
posted information that is potentially damaging, the employer
should first make a record of the posted information for
investigation purposes, and then contact the website administrator
to have the blog removed.
4. Consider capitalizing on the craze
You can also consider whether your company can take advantage
of these blogging sites. Many employers use Facebook to post
announcements and provide information to their employees
and customers. These sites can also be used to gather constructive
feedback - to find the pulse or word on the street – as
people may be more open in a blogging site than they would
be raising issues directly with the company.
Employee blogging and social networking sites are not a
passing fad, but a rapidly growing trend. Learning how to
address this trend in the workplace and to use it for your
benefit will help employers to protect and to promote their
businesses.
This article was published in the April
2008 edition of Bull, Housser & Tupper LLP's Labour
and Employment Newsletter. All copyright attributed
to Bull, Housser & Tupper
LLP.
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