Legal Research

Facebook: Employees? Lives on Display

By Kate Zavitz

It seems that every week, there is a new story on what someone said on the Internet where the individual is oblivious to the fact that anyone else would read it. As if this employee’s employer would not see her complaining about her job, expletives and all. Of course she might have remembered that he was a “Facebook friend”. Or this employee who was lucky enough to land a job in the present U.S. economy, only to turn around and “Tweet” about the downsides she would have to endure to receive her new “fatty paycheck”. Within hours her post was discovered by her new employer.

Even unions are in on this. In this recent Ontario Labour Relations Board decision, a union argued that one of its members had breached a confidentiality provision in Minutes of Settlement after it read her Facebook page. Ultimately the Board found that the posting did not contravene the settlement because it did not reveal any of the terms of settlement.

Aside from employers and unions using the Internet to police employees, what happens when employees become “Facebook friends”? Clace Holdings soon found out. Two of their female employees were invited on the Internet, purportedly by Estrada, a coworker, to become Estrada’s “Facebook friends”. They then viewed his profile and found disturbing information that suggested he had a criminal record. None of this information was known to Clace. Estrada was fired without explanation. He brought a complaint before the Tribunal alleging that he had been discriminated against on the basis of his criminal record.

At a preliminary hearing, Clace said the reason he was fired was because he had invited his colleagues to view threatening and inappropriate material on his Facebook page, not because he had a criminal record. Estrada said he had no knowledge of the profile, but he suspected that it was a fake created by a third party. But since Clace never told him it was the reason he was being fired, he was deprived of the opportunity to show it was a misunderstanding. The Tribunal declined to dismiss the complaint without a hearing — it was not plain that Estrada would be unable to prove that he was fired because Clace thought he had a criminal record.

In general, stories like these provide the reason for employers to revisit policies on acceptable technology use, professionalism, harassment and anti-discrimination policies at the same time. As can be seen from the ever-growing collection of examples, the collision of technology and human behaviour can create very difficult workplace situations.

When employees use technologies like Facebook to make statements or engage in inappropriate or criminal behaviour, employers should investigate and act with haste but not hastily. Who said what to whom, who witnessed it etc. Technologies may make workplace disputes more complicated, but the same principles still apply.

Full post as published by Slaw.ca on August 24, 2009 (boomark / email).