Should an employer friend his or her employees on Facebook? Connect on LinkedIn, follow on Twitter or read an employee’s blog? There is no consensus and employers continue to grapple with the role of social media in the workplace – and the role employers should take within these vehicles of communication.
The more difficult question is not whether to friend, follow or read, but whether an employer can then rely on that information as evidence when hiring, disciplining or firing an employee. Does social media produce reliable legal evidence?
In the British Columbia Court of Appeal case, Bishop v. Minichiello, released last week, the court upheld the lower court decision that ordered production of metadata from a plaintiff’s computer regarding his usage of Facebook. The court required the plaintiff to forward a copy of his computer hard drive to a neutral third party who would compile data on the narrow issue of the amount of time the plaintiff was spending on Facebook from 11pm to 5am. This was directly relevant to the plaintiff’s personal injury claim and to alleged fatigue during the day. The court permitted the forensic computer search on narrow grounds. While not an employment law case, the case does speak to how a court would rely on Facebook evidence.
Recent employment specific examples in the case law include:
- Making disparaging comments about the company or the boss online: this is usually valid grounds for some sort of discipline, particularly if a fundamental breach of trust results from particularly nasty comments.
- Discovering unfavourable information online about a potential candidate and choosing not to hire him or her: this has human rights violation written all over it if the decision to not hire can be connected to the candidate’s age, disability, pregnancy, or any other ground protected by the Human Rights Code.
- Firing someone because of comments posted on someone else’s Facebook Wall: talk about six degrees of hearsay separation! (Alberta Distillers Ltd. v. United Food and Commercial Workers, Local 1118 (Whiteside Grievance)  A.G.A.A. No. 46)
- Firing an employee because of information on their Facebook page if the employee claims the entire Facebook page is a fake page created by his ex-girlfriend: questions arise of proving the evidence found in Facebook.
- Whether a Status Update on Facebook could violate the confidentiality terms of a settlement agreement: apparently not, if the status is vague enough.
While American employers tend to have more leeway with disciplining employees for information gathered online, Canadian employers must continue to be cautious of the human rights regimes, privacy laws and employment law culture that afford employees more protection of their personal information than our neighbours to the south.