Canadian Employers Have Freer Hand to Curb Employee Off-Hours Social Media Conduct

By Peter Menyasz  

June 5 — Canadian employers have more freedom than their U.S. counterparts to implement policies that restrict what employees can say on social media platforms when they aren't at work, Canadian employment attorneys told Bloomberg BNA.

Canadian courts continue to support the notion that employees' duties of loyalty and confidentiality, which are inherent in the employment relationship, should fetter employees' off-duty social media activity, Edward Majewski, a partner in the Toronto office of Gowling Lafleur Henderson LLP, told Bloomberg BNA.

“The tension between employees' rights to express themselves online outside of their normal working hours and using their own devices versus their duties to not undermine their employers' business interests or disclose sensitive information has tended to be resolved in favor of employers,” Majewski added.

David Fraser, a partner with McInnes Cooper LLP in Halifax, Nova Scotia, told Bloomberg BNA that the Canadian legal system continues to recognize the legitimate interests of employers in their employees' social media activities, even if they occur outside workplaces and on the employees' equipment. Employees have “a duty of loyalty at all times,” Fraser said.

If an employee's online activities have a negative impact on a Canadian employer or the company's customers, then the company has the right to discipline the employee, up to and including termination, he said.

NLRB Takes Different Stance

Rulings by the U.S. National Labor Relations Board supporting employees' rights to express their views on social media about the terms and conditions of employment have forced American employers to adopt more employee-friendly social media policies, Majewski said.

The NLRB has ruled in multiple cases that U.S. employers violated the National Labor Relations Act by enacting social media policies that employees would reasonably construe to prohibit NLRA-protected activity. Section 7 of the NLRA protects the right of both union and nonunion employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Unlike many other areas of employment law, Canadian arbitrators, tribunals and courts have so far given employers greater latitude to impose more restrictive policies on employees' social media use, Majewski said. “As lawyers, we're usually telling American clients, ‘You can't do that here, or you can't go that far here,’ but with this, it's the opposite,” he said.

Majewski stressed, however, that the legal climate in Canada will provide little protection to employers if they fail to proactively educate employees about their legal duties and the perils of inappropriate social media activity.

It doesn't appear any Canadian arbitrator has addressed the content or scope of an employer's social media policy, but it is in an employer's best interest to have a policy in place, Majewski said. A U.S. company with employees or a subsidiary in Canada can take a less conservative approach to the limits imposed on Canadian employees, he added.

“As lawyers, we're usually telling American clients, ‘You can't do that here, or you can't go that far here,' but with this, it's the opposite.”

Edward Majewski, Partner, Gowling Lafleur Henderson LLP
Arbitration Upholds Dismissal

A recent Canadian decision involving unionized employers demonstrates the need for workers to be careful in their use of social media outside the workplace, Lewis Gottheil, director of the legal department for Unifor, Canada's largest labor union, told Bloomberg BNA.

Gottheil said an arbitrator in Newfoundland and Labrador ruled in December 2013 in favor of Corner Brook Pulp and Paper Ltd. in dismissing an employee with 13 years' seniority for Facebook postings that were critical of the employer (Commc'ns, Energy and Paperworkers Union of Canada, Local 64 v. Corner Brook Pulp and Paper Ltd.).

The opinion reinforced that there is no presumption of privacy in social media postings; that the employee's excuses of being stressed, tired and having consumed alcohol were insufficient to excuse the postings; and that threats and the possibility of violence will be taken extremely seriously, he said.

“It's not a freedom of expression issue,” Gottheil said. “Canadian arbitrators don't see it that way. They're not as liberal.”

Arbitrators in Canada interpret social media postings as being readily available on a wide range of devices, essentially the equivalent of posting something on a workplace bulletin board, and they may be less likely than their U.S. counterparts to differentiate between employees' social media activity at work and away from work, he said.

Gottheil said he isn't aware of many specific employer policies on social media use, other than policies restricting what employees can do with technology provided by the employer, such as computers and mobile phones. Employees are usually aware of those policies, but they don't appear to be aware that use of their own equipment might still be considered a workplace issue, he said. “That's where people are getting into trouble,” he said.

Rulings Supporting Employers

Canadian employment lawyers cited the following decisions as highlighting the status of employers' rights to address employees' social media use:

  • Canada Post Corp. v. Canadian Union of Postal Workers (2012): A worker was discharged for threatening and intimidating Facebook posts about supervisors, and the Edmonton, Alberta, arbitrator upheld the termination despite finding that the employee was unaware her Facebook profile was public.
  • Bell Technical Solutions v. Commc'ns, Energy and Paperworkers Union of Canada (2012): Three Bell technicians were punished for Facebook posts that contained offensive comments and photos about the employer; the Toronto arbitrator reinstated one employee who hadn't made disparaging comments and whose Facebook profile didn't say he worked for Bell but sustained the adverse actions imposed on the other two employees.
  • Alta. Union of Provincial Emps. v. Alta. Health Servs. (2012): A Calgary, Alberta, arbitrator found the agency correctly terminated employee Edmond Hajrallahu for a harassing Facebook exchange with a co-worker, although most of the exchange was off duty and through private messaging, finding messages between co-workers are work-related regardless of when and where they occur.
  • Groves v. Cargojet Holdings Ltd. (2011): A Calgary arbitrator found excessive the dismissal of an employee for threatening comments on Facebook about a supervisor but awarded only one month's salary, as the employee didn't seek reinstatement.
  • Wasaya Airways LP v. Air Line Pilots Ass'n, Int'l (2010): A Thunder Bay, Ontario, arbitrator found excessive the airline's dismissal of a pilot for posting racially derogatory remarks on Facebook against aboriginal people, the airline's customer base, but found the conduct rendered the work relationship untenable, ordering compensation and benefits for three months followed by suspension and then resignation.
  • Lougheed Imports Ltd. v. United Food and Commercial Workers Union, Local 1518 (2010): The British Columbia Labour Relations Board upheld the termination of two employees for posting offensive remarks on Facebook about supervisors and managers and suggesting the employers were crooks, finding that access of other employees to the postings rendered the conduct within the workplace.
  • Sask. Gov't and Gen. Employees' Union v. Gov't of Sask. Ministry of Corrections (2009): An arbitrator in Saskatchewan upheld the termination of three corrections officers for joining a Facebook group that posted racially derogatory content, despite the fact that it was a “private” group.
  • Chatham-Kent v. Nat'l Auto., Aerospace, Transp. & Gen. Workers Union of Canada (2007): An Ontario arbitrator upheld the termination of a nursing home employee who posted information, pictures and inappropriate comments on a public blog, finding the posts a serious breach of confidentiality.
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    To contact the reporter on this story: Peter Menyasz in Ottawa at correspondents@bna.com

    To contact the editor responsible for this story: Michael O. Loatman at mloatman@bna.com