Going Viral: Social Media and how it’s shaping Labour law
The use of social networking sites has become widespread.
Social media has become a mainstream communication tool. It has changed the way people interact with friends, family, and the general public too.
In fact, it was reported in 2014 that Canada ranked as the second heaviest users of the Internet, averaging 41.3 hours per month. Two out of three Canadians use social media in one form or another. And as of 2015, Facebook, LinkedIn, Twitter and Instagram were the most accessed social media sites by Canadians.
There are approximately 19 million Canadians who access Facebook at least once per month. Ten million mobile users log in with their phone or tablet daily.
Social media has changed the way we communicate with each other. But, it has also shaped our labour laws, which continue to grow and expand. In particular, this is true in the areas of:
- off duty conduct,
- time theft,
- breach of trust, and;
There are cases where employees received discipline and/or were discharged for their comments made about the workplace, co-workers or management on social networking sites.
Employers have started to expand on existing workplace policies or created new policies on social media to address the many rapid changes.
Remember, it can take mere seconds for your comments to go viral.
As a result, your employment relationship can end faster than the time it took to hit the enter key.
Remember, even when you press delete, nothing on the Internet really disappears. Be aware of what you are posting and the negative ramifications those comments can have on your employment. Do not post things out of anger or frustration. Your social networks may feel like a safe space. You may have your privacy settings locked down too. But, it only takes a moment for someone to capture the screen image and share it.
Some developments in Canadian Labour law pertaining to social media include:
- Discharge upheld for inappropriate off-duty use of his “Twitter” account. Held his sexist texts harmed the reputation of the Toronto Fire Department (Toronto (City) v. Toronto Professional Fire Fighters’ Assn., Loc. 3888,  O.L.A.A No. 507).
- Discharge upheld where employee sexually harassed, created a poisoned work environment and posted comments on his Facebook page (United Steelworkers of America, Local 9548 and Tenari Algoma Tubes Inc.  O.L.A.A. No. 180).
- Postal Clerk with more than 31 years of service discharged for her Facebook postings which were abusive, intimidating, and mocking of her supervisors and the Employer (Canada Post Corp. and Canadian Union of Postal Workers  C.L.A.D. No. 85).
- Termination had been deemed excessive however, Facebook messages posted after his termination completely destroyed the possibility of re-establishing a viable employment relationship (Calgary (City) v. CUPE, Local 38  A.G.A.A. No. 29).
- Employees do not have an expectation of privacy as Facebook postings were like comments made in the workplace (Leduc v. Roman,  O.J. No. 681).
And, still more…
- Individuals using social media must be assumed to have known that there is potential for virtually worldwide access to those statements (Wasaya Airways LP v. Air Line Pilots Assn., International,  C.L.A.D. No. 297).
- The Ontario Human Rights Code may apply to workplace related postings on the Internet (Taylor-Baptiste v. OPSEU, (2015 S.C.C.A. No. 412; 2014 OJ No. 4244; 2014 OJ No. 2591, 2013 OHRTD No. 179, 2012 HRTO 1393).
- Discharge upheld as Facebook postings were frequent, derogatory to both the company and the supervisor and prolonged. The second Grievor was reinstated following a one-year suspension (Bell Technical Solutions (“BTS”), and The Communications, Energy and Paperworkers Union of Canada (CEP),  O.L.A.A. No. 481).
- There was a connection between the blogging and the business interests of the company, there were sufficient mitigating factors to justify that the grievor be reinstated without compensation (EV Logistics v. Retail Wholesale Union, Loc. 580  B.C.C.A.A.A. No. 22).
- Termination upheld for breach of a confidentially agreement, insubordination and conduct unbefitting a personal care giver because of the contents of her blog. Her comments were insolent, disrespectful and contemptuous of management and were an attempt to undermine the reputation and authority of management (Chatham-Kent Municipality v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127,  O.L.A.A. No. 135).
Updated November 2015