Legal eye: When can you fire staff for blogging?

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When a blog, originally intended to innocently share stories and vent frustrations, degenerated into personal attacks on coworkers and management, the Ministry of Community and Social Services terminated the two employees it believed were the blog’s moderators.

The two fought back and while the organization could not prove one guilty (his termination was in fact upheld anyway, as he was separately found to be distributing pornography with his work e-mail account), the arbitrator found that the other, Aboutaieb, was indeed a moderator of the blog and was guilty of workplace harassment.

According to Melanie McNaught of law firm Filion Wakely Thorup Angeletti, employers can treat misuse of social media like most other disciplinary situation for employees. Issues of defamation, sharing confidential information and harassment are all worthy of disciplinary action, she says, depending on the severity of the situation.

However, the key is proving that the person in question was responsible for the posts. In the case described above, records from Aboutaeib's work computer showed the times he had logged on, but had he been using a home computer it would have been harder to prove he was responsible for the posts, and the employer may have had to hire a computer expert.

A central issue for many employers is the  lack of a social media policy, which means they must rely on the offending employee's behaviour contravening other policies such as harassment or confidentiality agreements.

“A lot of employers are still catching up,” McNaught says. “Some have bans on accessing social media at work but it's hard to ban them all and an employee could be posting harmful information about your company during their own time.”

Your social media guidelines should be clear on what employees can and cannot do. If you're going to allow access at work, you can still ban excessive use that interferes with work.

While you can't restrict freedom of expression, you can be clear on what is considered appropriate. Whether it's done online or in person, staff cannot argue that disclosing confidential information, defaming their employer or harassing coworkers is done in the name of freedom of expression.

Finally, McNaught says, ensure staff sign the policy to show they have read and understood it.





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