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Indiscriminate blogging and the workplace |
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Written by Sarah Crossley and Michael Torrance
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Confidentially policies need to offer clear rules
Internet blogging allows people to publicly voice their viewpoints like never before. It’s a new phenomenon, a kind of global electronic soapbox.
But when do opinions expressed on a blog affect the employment relationship? A recent Ontario arbitration award in Chatham-Kent v. National Automotive, Aerospace, Transportation and General Workers of Canada Union, Local 127 (known as the Chatham-Kent decision) helps answer this question.
The case dealt with an eight-year employee of a retirement home who set up an internet blog. The blog was accessible to the public at large and the employee used it to express her dislike for her employer and some residents of the home. The arbitrator noted the blog was “blunt and laced with coarse language.” The employee also posted pictures of herself with residents of the retirement home and made personal, disparaging remarks about certain individuals.
When management became aware of this, the employee was terminated for breach of confidentiality and insubordination. The matter was grieved but the termination was upheld at arbitration.
Blogging — the private is public
The arbitrator focused on the fact the employee’s blog was accessible to the general public and could be read by anyone with internet access. The union argued the grievor had not been aware of this. They said she intended the blog to be accessible only by close family and friends.
But the arbitrator found the employee was (at best) careless for ignoring the fact her blog permissions were set to “public” access rather than “private.” A private web site wouldn’t have ruled out discipline against the employee for her comments, but the public nature of the postings made them particularly serious — and damaging to the employment relationship.
The arbitrator also found the employer’s rules on the confidentiality of resident information were reasonable. They met the tests for unilaterally imposed rules. The posting of residents’ pictures was a clear violation of the confidentiality policy and worthy of discipline. The employee’s derogatory comments about management were insubordinate and provided just cause for dismissal.
Social networking web sites and employment obligations
The growth of social networking sites also presents a challenge to employers. Sites like Facebook and MySpace can be accessed anywhere, including at work. Employers need to decide where to draw the line on the limits of social networking used by employees, both on and off duty.
The Chatham-Kent decision provides some insights. One is whether it’s appropriate to distinguish between web sites where access is limited to personal contacts (Facebook) versus those that are accessible to the general public (Blogger.com or MySpace).
Such a distinction may be relevant when an employee is disciplined for making negative comments about management. Conceivably, less harm would be done to the reputation of the employer if disparaging comments have been made to a small circle of friends, rather than the public at large. This could be relevant to arbitrators in determining the appropriate level of discipline.
Chatham-Kent suggests, however, this distinction does not have to be drawn for breach of a confidentiality policy. If a policy is clearly drafted and communicated, it can legitimately prohibit the disclosure of any and all confidential information, whether to a small number of friends or the general public.
Lessons for employers
Confidentiality policies should be broad enough to include any and all disclosure of confidential information (made to the public at large or otherwise). They should also be broad enough to encompass new means of communication, so they can remain applicable as new technologies develop.
Employees should be educated about the proper limits on internet communication and the workplace, whether at work or not. Employees should also be reminded that anything they post online could be read by anyone in the world — anywhere and anytime.
Steps employers can take
Employers can take several steps to help deal with internet use in the workplace:
• Announce clear policies against disseminating confidential information. These policies should be broadly drafted and prohibit distribution of any information to any unauthorized person.
• Implement internet policies that clearly set limits on personal use of computers, the internet, blogs, and social networking web sites while at work. This can include blocking certain sites from workplace computers.
• Implement clear rules on insubordination, and educate employees about the extension of these policies to certain off-duty conduct.
The internet is a powerful tool for communication. And employee misuse of the technology can have serious consequences for employers. But with foresight and planning, employers can protect themselves and their businesses.
Sarah Crossley and Michael Torrance are employment and labour law lawyers at Ogilvy Renault LLP in Toronto. They can be contacted at
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