Use Facebook with Caution

Date: 2007
Author: Daniel A. Lublin
Publication: Metro

Facebook addicts face workplace consequences

“The Internet website that you have requested has been deemed unacceptable for use for government purposes” – so read the warning that greeted thousands of Ontario government employees, political staffers, MPPs and cabinet ministers who tried to log on to the popular website last week.
Facebook has grown in popularity — so much so, that a growing number of organizations, including your provincial government, have restricted access to the site from work. And, in my view, there is good reason to do so, as employees are too easily confusing freedom of speech with freedom from workplace consequences.
In the first reported occasion of employees being fired for Facebook use, eastern Ontario grocery chain Farm Boy turfed several workers after learning of conspicuous postings they left on the site. As Facebook’s popularity continues to rise, so will the number of ex-employees looking for new work, along with seeing their names on the front of one of my statements of claim. Employees should, therefore, concern themselves more about losing their jobs, instead of simply losing access to the site.
I offer the following advice for employees:

    • Spending an inordinate amount of time on Facebook while at work is tantamount to theft of an employer’s time, which is cause for dismissal. I am familiar with claims that some employees access the site up to forty times an hour. In these circumstances, seldom is Facebook being used for exclusively business purposes.
    • Comments written on Facebook can link the author to his employer, despite an unintended connection. Because workers are invited to disclose their place of employment and then automatically linked with registered co-workers, employees making unsavoury and unmonitored comments can potentially compromise a company’s reputation, trade secrets, or its competitive advantage – even if the reader mistakenly construes a posting as having been authorized by the company. Given the value placed on confidential information, courts are more likely to respect an employer’s decision to precipitously fire an employee whose posting compromised, or even potentially compromised, a competitive advantage.
    • Criminal laws can also be invoked if employees harass or intimidate coworkers via Facebook. These employees can end up surfing the classifieds for a criminal defence lawyer, as well as for a new job.
    • Unlike general Internet use, Facebook allows users to post information online for others to see, and later revisit. Postings of offensive comments, pictures or stories become incontrovertible evidence of an employee’s behaviour. In a previous column, I wrote about the case of two B.C. employees fired for distributing a vulgar email at work detailing the sexual gymnastics of an overweight female co-worker. Similar to an email, the ability to create, disseminate and maintain postings on Facebook means that the evidence can be traced back to its originators long after the fact.
    • But it’s not just Facebook’s use at work that can land you in my office seeking legal advice. Employees who believe that they cannot be disciplined for conduct outside of the workplace are profoundly mistaken, as employers maintain the legal right to discipline or dismiss for off-duty conduct. Facebook profiles and postings created and maintained outside of working hours and on employees’ personal time can quickly derail an employee’s fast-paced career, if the content brings their employer’s reputation into disrepute.

Employers are also crossing the line:

    • There are reports that U.S. employers and recruiters are cruising Facebook profiles of job candidates, gleaning intimate personal details of the candidate’s life, before deciding whether or not to extend that person an offer. And where risqué content is found, the offer won’t be forthcoming. In these cases, dicey comments or content can lead to your workplace execution before you ever set foot in the door.
    • Facebook-addicted employees and overly intrusive employers should take heed. While there are no current judgments considering the propriety of a dismissal for Facebook use, Canadian employers can anticipate creative employee-side lawyers challenging their decisions before the courts.