Author: Daniel A. Lublin
Hired to promote Nunavut as an arctic Nirvana, Penny Cholmondeley decided when she came across piles of abandoned machinery and rusted cans scattered on the snowy tundra outside Iqaluit that pictures of the debris would make for a captivating posting on her personal Internet Blog. As well as photos of garbage on the tundra, Cholmondeley also posted a poor review of a local restaurant and griped about the high prices for groceries. However, Cholmondeley’s boss at the Nunavut Tourism Agency disagreed; when he learned of Cholmondeley’s artistic tastes and the manner in which she promoted them, Cholmondeley was immediately fired.
Cholmondeley’s story made headlines across Canada. Soon it will become a reality for more employees. In fact, I currently own one such case, in which a school janitor was discharged for posting comments on his personal blog that his employer believed “inaccurately” portrayed the school.
With the proliferation of Blogs, defined as “on-line journals,” what used to be innocuous conversations at the water cooler are now being posted on-line for all to see. The results: anyone can instantaneously transform himself or herself into a self-proclaimed “journalist” – even the school janitor.
For both employees and employers, Blogging creates an entirely new panoply of workplace concerns. What are those concerns and how can they lead to discipline at work?
For one, even though most Blogs are created and maintained outside of working hours and on employees’ personal time, employers do the have the legal right to dismiss for off-duty conduct. As a general rule, discipline is properly administered when off-duty behaviour brings your employer’s reputation into disrepute, reflects badly on your employer, or where your behaviour leaves co-workers unwilling to work with you. In a previous column, I discussed the case of an instructor teaching Business 020 and ethics at the University of Western Ontario who was fired when the University discovered that he was engaged in an insurance fraud scheme. There is no good reason why the principles would not apply similarly to employees generating negative publicity via Blog entries.
Blog postings that can be considered harassing or discriminatory can also undermine the essential conditions of employment and justify an employer’s decision to dismiss the employee. In another previous column, I reviewed the case of two employees who were fired after distributing a vulgar e-mail at work detailing the sexual gymnastics of an overweight female co-worker and then lying to their employer during the ensuing investigation.
Usually, imposing workplace discipline requires that employers first be able to prove that the misconduct actually occurred. The relative ease with which Blog entries are created, disseminated and maintained means that the evidence is unlikely to ever disappear. So, postings of jokes, pictures or stories can be traced back to their originators, even years later.
But employees making unsavoury Blog entries don’t just face the risk of work-related discipline. Some Blog entries can violate criminal standards, such as hate propaganda or obscenity laws. In these cases, guilty employees stand to lose more than just their job; their liberty is on trial as well.
I’m told that Blogs are a means of personal “expressionism”. However, when employees use their personal Blogs to lambaste the company that fired them, or the boss they alleged harassed them, defamation laws can apply. Although I’m not familiar with an employment-related case involving defamation stemming from a Blog, information published on-line is certainly subject to the same defamation rules as information published in the print media.
Finally, employers are weary of the serious confidentiality and privacy risks that potentially arise from employees’ Blog entries. As a result, some employers have implemented specialized policies prohibiting Blogging at work. IBM, for example, is one such company that recently implemented a detailed Blogging policy. Where such a policy is distributed in the workplace and then contravened, the employee jeopardizes his or her position.
Blogging can cost you your job