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April 9, 2013  

The impact of social media on hiring and firing decisions

 

Sabrina Lucibello
Sabrina Lucibello,
Partner

By Sabrina Lucibello
First presented at an Employment Law Seminar

The rise of social media has dramatically changed the way in which information is acquired and used in the workplace. Social media includes forms of electronic communication through which users create online communities to share information, ideas, personal messages, and other content.1 This includes Facebook, blogs, LinkedIn, and Twitter. These sites can be used to develop social and professional contacts, among other things.

While users of social media can adjust the privacy settings for their profiles on social media sites like Facebook so that only certain other users can access the content, this does not mean that the content is necessarily 'private'. In fact, the courts have noted that Facebook users enjoy a relatively low expectation of privacy when they post material on the site.2

In Leduc, the plaintiff's Facebook profile was restricted so that only his 'Facebook friends' could view his Facebook page, although his name and profile picture were publicly available. As such, defence counsel was unable to view the contents of his page. Defence counsel brought a motion to compel production of all information on the plaintiff's Facebook page. The court ultimately held that a party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile.3 While a party to an action is only required to produce those postings that relate to matters in issue in an action (as opposed to all content, regardless of whether it is relevant to the issues in the action), the fact that the party has made certain content on his page 'private' does not circumvent the party's obligation to produce relevant content.

Hiring

There is a dearth of case law considering the impact of social media on hiring decisions. This is likely due at least in part to the fact that a prospective hire would not generally have any information with respect to whether an employer has considered her social media presence in deciding whether or not to extend an offer of employment.

Despite the lack of case law considering the impact of social media on hiring decisions, the use of Facebook, LinkedIn, and other social media to screen potential employees is not wholly without legal guidance. In particular, employers can and must use human rights legislation as a guide with respect to what they can and cannot consider when using social media to screen potential candidates for a position. In Canada, employers cannot screen potential hires through social media if the process will violate a person's privacy rights or human rights laws.

Human rights laws prevent employers from considering a variety of factors in the hiring process, including a person's race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for which a pardon has been granted.

It is trite law that employers cannot ask about any of the foregoing matters during interviews. However, now that more and more of this information is publicly available online, employers who seek out information via social media profiles risk, even unintentionally, violating human rights legislation if what they see online causes them to screen candidates who would not have otherwise been screened.

Firing Decisions

"An employee's social media presence can involve the employee's conduct both on and off the job."

An employee's social media presence can involve the employee's conduct both on and off the job. While it is easy to understand how an employer may be able to establish just cause for dismissal based on depictions of an employee's conduct while on the job, it is arguably more difficult to establish just cause where the conduct or postings in question pertain to activities or comments which occurred outside of working hours and may or may not be job-related. The courts and administrative tribunals have considered whether employers were justified in terminating employees for off-duty conduct in a variety of contexts, including making disparaging comments about an employer outside of the work environment and making comments that may or may not align with an employer's philosophies or expectations for employees.

Off-Duty Conduct

In order to establish just cause for discipline for an employee's off-duty conduct, an employer must consider whether or not the conduct “is sufficiently business related in that it can be proven to be prejudicial or harmful to the employer's legitimate business interests.”4

In ThyssenKrupp Elevator, an employee was dismissed after a video was posted on the Internet that showed him having his genitals stapled to a 4x4 wooden plank. While the incident took place at lunch, which was technically outside of working hours, it did occur at a worksite and employees in the employer's uniform were visible in the video.

Even though the employee was not the one to post the video online, no other employees were disciplined, and the employee had no history of discipline issues, the Ontario Labour Relations Board (“OLRB”) upheld the employer's decision to terminate the employee. In coming to its decision, the OLRB noted that the conduct was offensive and shocking and that the employer was easily identified in the video. The OLRB also noted that the employer was engaged in a safety-sensitive industry and that it was conceivable that the employer would experience significant prejudice to its reputation.”5 Further, the OLRB held that the employer had “a significant interest in preventing, if not an obligation to prevent, its employees from engaging in stunts, pranks or horseplay in the workplace.”6

Disparaging Comments about the Employer

In addition to video showing the conduct of an employee, an employer may also take action against an employee for comments or postings about the employer or other employees.

In Bell Technical Solutions, an arbitrator considered an employer's decision to terminate two employees after they had made disparaging comments on Facebook regarding their supervisor and the employer. The arbitrator noted that:

[I]t is well-established that inappropriate Facebook postings could result in discipline or discharge, depending upon the severity of the postings. The nature and frequency of the comments must be carefully considered to determine how insolent, insulting, insubordinate and/or damaging they were to the individual(s) or the company. In some cases, the issue is whether the comments were so damaging or have so poisoned the workplace that it would no longer be possible for the employee to work harmoniously and productively with the other employees or for the company.7

In Bell Technical Solutions,several employees filed grievances alleging unjust dismissal, discrimination, and harassment after they were discharged for pictures and comments they had posted on their Facebook accounts over a period of more than a year. The postings were allegedly insulting and offensive to the employer and the grievors' supervisor.

The employer submitted that the employees had engaged in a deliberate, offensive, and malicious course of ridicule of the company and harassment of the supervisor. The employer maintained that the postings were seen by several employees. The union submitted that the postings were off-duty conduct and were meant to be private communications among them, not public communications. The union argued that, in fact, it was the supervisor who was acting in an improper, intimidating, aggressive and harassing manner at work.

In determining whether or not the employer's decisions regarding discipline and discharge of the employees were appropriate, the arbitrator noted that being uncooperative, defiant, or dishonest during the employer's investigation has been taken into consideration in a number of cases.8In addition, the cases have often taken into account an employee's acceptance of responsibility, show of remorse, and offer of a genuine apology.9 Further, the arbitrator noted that provocation, such as inappropriate behaviour by a manager which incited, in whole or in part, the misconduct of an employee, can be considered to be a significant mitigating factor.10

"...employees (discharged) on the basis that his Facebook postings were frequent, deliberate, prolonged, and derogatory to both the company & supervisor."

The arbitrator ultimately upheld the discharge of one of the employees on the basis that his Facebook postings were frequent, deliberate, prolonged, and derogatory to both the company and the supervisor. The arbitrator further noted that the employee received two warnings but did not cease to make derogatory comments and that his apology letter lacked sincerity.

However, the arbitrator held that the other employees should be reinstated to their employment, in part due to their length of service with the employer and the fact that provocation was a greater factor.

In another matter, a postal clerk with 31 years of service was discharged after management became aware of postings on the employee's Facebook account wherein she made derogatory, mocking statements about her supervisors and invited others to join in, including comments like ‘Die bitch die' and ‘Go back to hell, they miss you.'11 Two supervisors who were targeted by the postings became distraught after learning of the content of the postings and required time off work. The arbitrator noted that there was ample case law to support the principle that what employees write in their Facebook postings, blogs, and emails, if publicly disseminated and destructive of workplace relationships, can result in discipline.12 The issue for the arbitrator was whether the amount of discipline imposed (i.e., discharge) was an appropriate penalty given all of the circumstances, including the fact that the employee was in her early 50s and had more than 30 years of service.

The arbitrator ultimately upheld the employer's decision to discharge the employee. In coming to his decision, the arbitrator did not accept the union's argument that the postal clerk was justifiably venting her frustration over a toxic work environment. The arbitrator held that the Facebook postings were extremely offensive, abusive, and intimidating, were mocking to the point of bullying, and were aimed primarily at one supervisor. Indeed, the arbitrator noted that the “postings were mean, nasty, and highly personal. They go well beyond general criticism of management and essentially target one person with a degree of venom that is unmatched in other social media cases.”13

The arbitrator gave little weight to the fact that the postal worker was under a misapprehension about who could access her Facebook page and held that this could not relieve her from responsibility for what she wrote.14 He noted that she demonstrated a degree of recklessness in failing to consider how easily her postings could be spread, even if she restricted access to her Facebook page, as a number of her ‘Facebook friends' were current and formal postal workers. This brought her “Facebook postings directly into the workplace, undermining any claim her site was intended as a private, non-work, forum.”15

Similar to the decision in the Canada Post case, the British Columbia Labour Relations Board (the “Board”) upheld an employer's decision to dismiss two employees after they made disparaging comments about their employer on their Facebook pages.16 The Facebook postings included references to the employees' supervisor, referred to as F.Y., as a “complete jack-ass” and a “half-tard.” The postings also included allegations that F.Y. was engaged in a sexual relationship with another male manager of the employer. The employees were ‘Facebook friends' with both current and former employees of the company.

“...the nature of the comments made towards the supervisors were offensive and egregious.”

The Board rejected the argument that the employer's decision to dismiss the employees was based on anti-union animus, noting that “the nature of the comments made towards the supervisors were offensive and egregious.”17 The Board held that the termination of employment was “not out of proportion with the misconduct” and upheld the decision to terminate the employees. In addition to cases where employees have made disparaging comments about their employer and/or supervisor, there have also been situations in which employees have made disparaging comments about the employer's clients. For example, in one case, a personal caregiver at a home for the aged was fired after she created a blog in which she posted photographs and information about residents entrusted to her care, as well as comments about fellow employees and management.18 It is important to note that the employee had signed a confidentiality agreement in 2004, which was reviewed annually at training and which provided that she would be subject to disciplinary action up to and including termination if she breached the terms thereof.

The employee provided evidence that she thought that her blog was a private site, although she admitted that she was not very computer-literate. She agreed that the things she wrote about residents, management, and co-workers were not appropriate to be discussed in a public setting but maintained that she thought that she was communicating privately with three friends.

The arbitrator concluded that the employer had just cause to terminate the employee, as she had breached the confidentiality agreement, she had made insubordinate comments about management, and she had made comments which demonstrated a disregard for residents' need for care, which was conduct unbefitting a personal caregiver in a home for the aged.19

Comments Contrary to the Employer's Policies and Philosophies

In Wasaya Airways LP v. Air Line Pilots Assn., International,20 the employer airline was owned by a number of First Nations and had a policy that required employees to demonstrate respect for First Nations people. A pilot who had been employed by the airline for three and a half years was discharged after he posted comments on Facebook that were disrespectful to First Nations people. In advising the pilot of its decision to discharge him, the airline noted that the pilot had publicly denigrated and belittled the customers it served and that it was impossible to account for the number of people who could have read the comments. The pilot subsequently removed the postings and wrote a letter of apology to the airline.

The arbitrator noted that the airline had just cause to discipline the pilot. His reasons therefore concerned whether or not the discipline imposed was appropriate and warranted in the circumstances.

The arbitrator noted that the Facebook posting was made on the pilot's own computer at a time when he was not at work (i.e., it was off-duty conduct). Therefore, in order to establish that the discipline for off-duty conduct was appropriate, the airline would have to establish that the pilot's actions harmed the airline's public reputation or adversely affected its ability to conduct its affairs and direct its workforce in an efficient manner. With respect to the airline's reputation, the arbitrator was to consider the response of the particular sector of the community to which the airline provided services should members of that sector become aware of the conduct in issue. In that regard, the airline's reputational concerns must be both ‘substantial and warranted': what would a reasonable and fair-minded member of the public sector to which the airline provides services think of the employee's off-duty conduct if apprised of all the relevant facts?21

With respect to the test described above, it has been noted that actual or potential reputational damage to an employer as a result of an employee's off-duty conduct need not be proven through direct evidence of negative press scrutiny and/or public controversy. Instead, the key consideration is the extent to which the conduct has the potential for significant detrimental impact on the employer's business reputation or ability to operate its business effectively.22

“...the pilot's misconduct had rendered the employment relationship untenable.”

The arbitrator ultimately upheld the airline's decision to discipline the pilot but held that the level of discipline imposed was excessive, given a variety of mitigating factors. However, the pilot's misconduct had rendered the employment relationship untenable. The arbitrator awarded the pilot full compensation and benefits for 4 months, following which the pilot would be deemed to have resigned from the airline.

In coming to the conclusion that discipline was warranted, the arbitrator noted that a reasonable and fair-minded member of the First Nations community would have little, if any difficulty, in concluding that the pilot was including First Nations people in his Facebook posting. Given the fact that the airline's values were designed for First nations people to be respected, it could be said that the pilot's Facebook posting did not reflect the airline's values.23 As such, the arbitrator had to consider the matter of harm to the airline's reputation.

The arbitrator held that it was not unreasonable to assume that the pilot knew that his comments could have wide access, given that he chose the Internet as his medium for communicating his statements. While the pilot did not identify his employer in his Facebook posting, his remarks still had a real and material connection to the company, such that the airline had cause to have both substantial and warranted concerns about potential reputational harm.24

Conclusion

It is clear from the cases in which the courts or tribunal have considered hiring and firing decisions made by employers in respect of content posted on social media that the decision regarding whether the employer's decision was appropriate will necessarily be fact-specific. However, it is abundantly clear that postings on social media are not considered private, even where an employee has taken steps to make his/her postings something less than publicly available. As such, employees should take steps to ensure that anything they post on social media sites, be it Facebook or Twitter or YouTube, is something that they would be comfortable having their employer or prospective employer view, as they can certainly be held accountable for such postings.


1 Merriam-Webster Dictionary.
2 Leduc v. Roman, [2009] O.J. No. 681 (Ont. S.C.J.) at 31-32 [hereinafter Leduc].
3 Ibid at 32.
4 International Union of Elevator Constructors, Local 50 v. ThyssenKrupp Elevator (Canada) Ltd., 2011 CanLII 46582 (OLRB) [hereinafter ThyssenKrupp Elevator].
5 Ibid at 34.
6 Ibid at 32.
7 Bell Technical Solutions v. Communications, Energy and Paperworkers Union of Canada, [2012] O.L.A.A. No. 481 at 112 [hereinafter Bell Technical Solutions].
8 Ibid at 120.
9 Ibid at 121.
10 Ibid at 122.
11 Canada Post Corp. v. Canadian Union of Postal Workers, [2012] C.L.A.D. No. 85 (Canada – Labour Arbitration).
12 Ibid at 100.
13 Ibid at 103.
14 Ibid at 108.
15 Ibid.
16 Lougheed Imports Ltd. operating as West Coast Mazda v. United Food and Commercial Workers International Union, Local 1518, [2010] B.C.L.R.B.D. No. 190 (B.C.L.R.B.).
17 Ibid at 112.
18 Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127, [2007] O.L.A.A. No. 135 (Ontario – Labour Arbitration).
19 Ibid at 31.
20 Wasaya Airways LP v. Air Line Pilots Assn., International, [2010] C.L.A.D. No. 297 (Canada – Labour Arbitration).
21 Ibid at 69, citing Re Ottawa-Carleton District School Board v. Ontario Secondary School Teachers' Federation, District 25 (Plant Support Staff), [2006] O.L.A.A. No. 597.
22 Ibid at 71, citing Re Toronto District School Board and C.U.P.E., Local 4400 (2008), 173 L.A.C. (4th) 49.
23 Ibid at 83.
24 Ibid at 99.


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