30th Sep 2012
Author: Daniel A. Lublin
The workplace no longer has traditional borders. Employees now correspond through instant messages, through Facebook and via e-mail. Seldom do they do so exclusively for business purposes. Others, who are bored, unmotivated or underworked, surf the internet for much of their workdays, managing their sports pools, blogging about coworkers, reading the news or dating on-line. Employers have good reason for concern. Lost productivity and potential liability for the actions of their employees have caused most organizations to revisit their computer use policies – or create new ones altogether.
But, what happens when employee privacy rights collide with an employer’s right to monitor its workplace?
First, employees can too easily confuse freedom of speech with freedom from workplace consequences. Employers own workplace computers and the networks and they maintain the right to monitor employee internet use, with or without notice to the employees. Therefore, employees can be disciplined or even fired for internet transgressions:
- Employees spending an inordinate amount of time at work accessing the web for personal use can be tantamount to theft of an employer’s time, which can be cause for dismissal, with appropriate warnings.
- Internet use that can be considered harassing or discriminatory will be often be grounds for dismissal. In a 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. In a more recent case, a New Brunswick judge upheld the dismissal of an employee finding that his conduct amounted to sexual harassment because the female IT manager who performed an audit on his computer found the websites he visited “offensive”.
- Criminal laws can also be invoked if employees harass or intimidate coworkers or if they violate hate propaganda or obscenity laws. These employees can end up surfing the classifieds for a criminal defence lawyer, as well as for a new job.
- And it’s not just internet misuse at work that can land employees in my offices seeking legal advice. If the content of an employee’s blog, Myspace or Facebook page can be construed as having a connection to the workplace, discipline will often be justified. In a recent case, an arbitrator upheld an employee’s dismissal where her employer, a retirement home, came across a personal blog the employee created with postings that expressed her disdain for the residents and management. It didn’t matter that the employee had created and maintained her blog at home or that she intended for it to be private; its connection to the workplace was obvious and any member of the public could view it. In this decision, the court sent the message that blog postings were not casual and Canadians should carefully consider contents before posting anything.
- Given the value placed on confidential information, courts are more likely to respect an employer’s decision to fire an employee where his online habits or postings compromised, or even potentially compromised, a trade secret or competitive advantage.
How should Canadian workplaces adapt to these challenges?
- Employers should prepare and circulate policies on acceptable internet use, detailing what will be considered inappropriate and reminding employees that, as they own the computers and equipment, they may be monitored randomly and without notice.
- Employees need to familiarize themselves with any policies in place and ensure that personal internet use away from the office does not intersect with their jobs. This applies equally to the use of PDA’s, BlackBerrys, Blogs and Facebook.