A couple of weeks ago, we posted about the lawsuit filed by the NLRB after a Connecticut company fired an employee over Facebook posts. Much ink has been spilled in the ensuing days, with many employers becoming increasingly concerned about restrictions being placed on their ability to control their own workforce based on employees’ social media activity. Could two recent International developments cause you to consider a relocation?
First, the British Columbia Labour Relations Board upheld an employer’s right to fire its employees based on posts made on a social networking site that were less than flattering toward the company and various supervisors. The string of posts began with one employee posting to co-workers, who happened to be friends on Facebook: “Sometimes ya have good smooth days, when nobody’s fucking with your ability to earn a living . . . and sometimes accidents DO happen, its unfortunate, but that’s why there called accidents right?”
That post was later followed by others, ranging from “[i]f somebody mentally attacks you, and you stab him in the face 14 or 16 times . . . that constitutes self defence doesn’t it????”, to references to supervisors engaging in sexual conduct and the company itself consisting of “crooks” who are out to “hose you.” In upholding the employer’s decision to terminate the offending employees, the Canadian Board agreed with the company’s decision that the postings both created a hostile environment for supervisors and co-workers, and also were likely to damage the company’s reputation and interests.
In another apparent victory abroad for employers, an industrial arbitration council outside of Paris, France upheld an employer’s decision to fire two employees for posting “denigrating” comments about the employer during a private Facebook chat. These posts seemed fairly innocuous by comparison, consisting of one employee commenting to two others that the company was a “club of ill-fated” employees, and that being in the particular club (i.e., the company) made one of the employee’s life miserable.
The employees argued that the posts and conversation were private and could not be used as evidence before the council in support of the terminations. The council disagreed, finding that because the Facebook conversations could be viewed by “friends of friends”, and that the existing privacy setting allowed a significant number of non-employees to view the comments, the company properly determined that the employees were denigrating the company and abusing their right to free expression under the applicable labor code.
Employer Take Away: What should you as an employer take away from this development? The law is rapidly developing, both here and outside our borders, in terms of what you can and cannot rely upon in making employment-related decisions. Beyond staying in touch with these and other continuing developments in the social media and employment law field, it is critical that you stay abreast of the limitations imposed in the particular jurisdiction where you are engaging in business with your employees.