Facebook has grown in popularity – so much so, that a growing number of organizations 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.
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 page of one of my statements of claim.
Therefore, employees should be more concerned about losing their jobs, instead of simply losing access to the site:
Spending an inordinate amount of time on Facebook while at work is tantamount to theft of an employer’s time, which can amount to cause for dismissal. Employees flirt with friends, post pictures and chat on instant messaging.
In these circumstances, seldom is Facebook being used for exclusively business purposes.
When Facebook postings reveal unsavoury characteristics, employees can be fired. I’ve had two such cases. In one, the employee’s pictures of her messy workstation irked her employer so much, she was immediately dismissed.
In the other, a large retail chain fired a store manager after he posted a link to a video of himself that was taken when he was off-duty, but in company uniform.
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 are automatically linked with registered co-workers, employees’ 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.
Similar to an email, a Facebook posting can be used as evidence in court. In September, an Ontario court ruled, for the first time, that pictures taken from a litigant’s Facebook page were admissible as evidence at a trial.
As Facebook allows users to post information online for others to see, and later revisit, offensive comments, pictures or stories can become incontrovertible evidence of an employee’s behaviour.
But it’s not just Facebook use while 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 career, if the content brings his or her employer’s reputation into disrepute.
Daniel A. Lublin is an employment lawyer.