Employees should concern themselves more with losing their jobs, instead of losing access to Facebook at Work.” — Daniel Lublin
Last week, the Toronto Star sought my legal opinion on Facebook at work and the recent provincial government’s ban for it’s nearly 2000 employees.  Unfortunately, the CBC cancelled my interivew on their Sunday morning show.  However, I’m fortunate enought to be able to publish more about the issue anyway, in my weekly workplace law column, in the Metro News.
My view is that seldom will Facebook be used for exclusively business purposes, while being accessed by employees at work.  Given the popularity of the site and the fact that employees can easily be linked to their employers, there are good reasons for applauding the Ontario government’s decision to prohibit access to the site.  In essence, while there may be some social networking value to Facebook, more traditional networking mediums such as newsletters, the telephone and email, should not be abandoned in lieu of Facebook, where it is impossible, in my view, to divorce the social aspects from the business advantages.
My article in the Metro today, Facebook Access Denied, offerred the following legal perspective:

  • employees are too easily confusing freedom of speech with freedom from workplace consequences;
  • 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;
  • Spending an inordinate amount of time on Facebook while at work is tantamount to theft of an employer’s time, which may be cause for dismissal;
  • 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;
  • 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.  The ability to create, disseminate and maintain postings on Facebook means the evidence can be traced back to its originators long after the fact;
  • 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 be cause for dismissal, if the content brings their employer’s reputation into disrepute;
  • 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.