Photo Credit - Gilles Lambert

Photo Credit – Gilles Lambert

We all know that social media, electronic communications and the online world has changed how we interact socially. Who has the patience to leave a voice message for a friend about a restaurant meeting place, let alone listen to one? That’s what instant messaging (IM) is for. Short, efficient and no small talk.

Enterprise IM Platforms

But does this efficient communication work in the workplace? Enterprise IM platforms like Slack, Yammer, Skype for Business and GSuite’s Hangouts all attempt to provide a ring fence and level of security around workplace communications. The problem is, IMing lulls us all into informality and a casualness that can sometimes blur into overly personal banter.  

IM in the Virtual Workplace

The greater potential problem is the use of texting in virtual workplaces. The enterprise platforms are intended to not just make for efficient work-related communications, but also foster workplace culture, relationships and collegiality, a pressing need in virtual environments. For many staff, it is a very comfortable method to communicate, more closely mirroring personal modes of communication, and can become the virtual watercooler.  

While owners and managers want their remote employees to have relationships, to work together and bond as a team, if the main platform the employees are directed to is a Slack channel as watercooler, then there is a good chance those communications will contain plenty of non-work-related communications.

Expectations of Privacy

R v Cole and various cases since have told us that employees in Canada have an expectation of privacy in the workplace that can be diminished but not eliminated by workplace policies.  Meanwhile, Bills 132 and 168 have amended the Ontario Occupational Health and Safety Act to put proactive duties on employers to address harassment and violence in the workplace, conduct which now often starts with an online post.

How are employers to balance that expectation of privacy with legal duties to protect employees and address misconduct? Very carefully.  

We will increasingly see the newer generations of workers who do not remember life before the internet demand some form of privacy online. No employer would think they can automatically act on a conversation a supervisor overheard in a bar offsite, so why should comments online in a private space (e.g. a tightly controlled Facebook page with a modest number of friends) trigger immediate discipline?   

Power of Writing

The difference, of course, is that one is in writing and while there is a risk it could be taken out of context, there is little risk about whether the words were stated. It’s simply easier evidence for an employer to act on. If an anonymous printup of a nasty but after-hours online discussion on personal devices between 2 staff about a 3rd staff member is slid under HR’s door, it’s hard for HR to ignore this written evidence of staff misconduct.

Whether to act on it is another story, and it will go back to the Millhaven test on the extent to which the comment has a nexus to the workplace. At some point, however, I anticipate that the mere fact that comments occurred on a workplace issued device within an IM platform may stop being such a strong factor upon which the employer can rely to discipline.

Policies – with Employee Input?

Aside from the frequent suggestion to ensure that workplace policies address online conduct, it will be increasingly important to have open discussions with younger employees about what expectations of privacy online means to them. Younger employees are used to having their life exposed on the internet (often by their own parents on Facebook), but that doesn’t mean they don’t still want a choice about their own privacy, and to make decisions about what will be carved out as a personal versus professional IM platform.  

It remains the employer’s right to manage the workplace and protect its digital assets, but that managing and protecting will benefit from a more open dialogue with the new generation coming into the workplace about the role of IM and online conduct generally.

Carving out privacy online will continue to be an uphill battle, but is part of the ongoing evolution of a civilized society figuring out how to have privacy in such a connected world.