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3 steps to rein in social media misuse in the workplace

Employers and practice owners know that not every aspect of this new
technology is positive. Studies suggest access to the Internet during
business hours can reduce workplace productivity by up to 40 per cent,
as employees turn their minds from work to social interaction and play.
Workplace bullying and harassment is also on the rise, due in part to
the ability of colleagues to reach each other secretly via the Internet,
rather than publically by the water-cooler. The anonymity of the
Internet has also enabled many a malevolent blogger and tweeter – often
an employee – to destroy products, brands and entire organizations.

Fortunately,
much of this behaviour can be minimized when employees understand the
parameters and consequences of Internet misconduct. To this end, we can
divide Internet misconduct into two categories:
1.   Misconduct
while on the job (e.g., excessive personal use of the Internet and/or
accessing prohibited sites during work hours, etc.); and
2.  
Misconduct that may take place outside of the workplace (e.g.,
offensive, irresponsible, defamatory blogging, Tweeting, harassment,
etc.).

The first form of employee Internet misconduct is the
easier of the two to identify and discipline. Relatively simple
technology allows employers to track time spent online, sites accessed
and content downloaded and/or uploaded. If misconduct is identified, it
can and should be dealt with appropriately.   

The second form of
misconduct can be more problematic. Canadian courts and labour
arbitrators have traditionally drawn a line between an employee’s work
and private life, declining to uphold discipline for “off-duty” conduct
where there is no clear connection to the workplace. In some cases that
connection is obvious – for example, where the company is criticized
publicly. In other cases, the line is not as clear.

Consider the
case of the tragic death of high school student Amanda Todd. In the
aftermath of her suicide following relentless bullying and harassment,
an employee of a retail store in Ontario, a man with no apparent
connection to Ms. Todd, posted to Facebook the comment: “Thank God this
b—- is dead.” A Calgary woman tracking Facebook comments about Ms.
Todd saw the posting, and when she viewed the poster’s online profile
saw the name of his employer. She reported the posting to the employer
who immediately fired the man because the posting was contrary to the
employer’s values and the poster could be publicly identified as its
employee.  

Was the man’s posting sufficiently connected to the
workplace to justify his termination? We may never know, as the case has
not been adjudicated. It is, however, a thought-provoking example of
how online comments, even ones not directly related to the workplace,
can have a workplace impact.

Here are some steps that can be taken to minimize the risk to business caused by employee misuse of technology and social media.
 
Step 1: Have an Internet use and social media policy
A
clear, direct Internet and social media policy is essential as a means
of communicating to employees the limits of acceptable online
communication and conduct. When and how to introduce a policy into the
employment relationship (or amend an existing policy), depends on
several factors which should be discussed with experienced employment
counsel.  

At the very least, an effective Internet use and
social media policy should outline permitted and prohibited uses of
workplace technology and social media. This includes advising or
reminding employees of the following.
• They should have no expectation of privacy as it relates to the use of company technology
• The employer has the right to monitor computer usage within and about the workplace
• The employer monitors social networking sites (if accurate)
• The limits to Internet use during work time (total prohibition is rarely reasonable or practical)
• That online communications may be seen by anyone (including the employer, co-workers and members of the public)
•
The prohibition on publishing negative comments, not only about the
employer, other employees or customers, but any comments that may
negatively affect the employer’s reputation (e.g., defamatory,
offensive, threatening, harassing, etc.)
• The prohibition on disclosing confidential information about the company, employees or customers
• Applicable, companion policies, such as harassment, confidentiality, conflicts of interest and privacy
• The process for addressing complaints
• That violation of the policy may result in discipline, up to and including termination for cause

Step 2: Monitor usage
An
employee who believes Internet misconduct cannot be seen has less of an
incentive to behave, which is why monitoring Internet and social media
use inside and outside of the workplace is the second essential step.  

Inside
the workplace requires the implementation of technology that has been
available for years, and is not expensive. This technology can track
time spent online, sites accessed and content downloaded and/or uploaded
(e.g. confidential company information, or personal customer or
employee information).

Outside the workplace provides the ability
to monitor public social media communications around the world,
identifying those which fit a profile the employer determines it
wants/needs to track. For example an employer may determine it should be
alerted every time the organization’s name is mentioned in a public
Tweet, blog or social media forum.
 
In both cases, whether
tracking activity from within or without the organization, it is
important to implement methods that are the least intrusive necessary to
achieve reasonable business ends.

Step 3: Implement and enforce
Even
the best written policy is of little significance if not implemented
properly.  In our experience, a well-implemented policy has four key
components:

Relevance: Management and employees should be
educated on how and why the policy is relevant to and will apply to
their day-to-day responsibilities.

Proportionality:  The impact
of the policy must be reasonable and rational; neither overreaching nor
attempting to attain a ‘gold standard’ that may not be necessary.

Consistency: The policy must be applied consistently and fairly so as not to lose credibility within the workplace.

Flexibility:
The policy must be a living document, able to adapt to and reflect the
organization’s business realities as they may change from time to time.

For
better or for worse, the Internet and social media have become a
workplace reality. The objective for employers is to harness the
benefits of this exciting technology, while at the same time protect the
business from its dangers. This can be accomplished by having a clear
and unambiguous Internet and social media policy, monitoring internet
and social media usage as it relates to the workplace, and enforcing the
Internet and social media policy consistently and fairly.   

——-
Curtis Armstrong is a lawyer with Sherrard
Kuzz LLP, one of Canada’s leading employment and labour law firms,
representing management.  Curtis can be reached at 416.603.0700 (Main),
416.420.0738 (24 Hour) or by visiting www.sherrardkuzz.com.   

The
information contained in this article is provided for general
information purposes only and does not constitute legal or other
professional advice. Reading this article does not create a
lawyer-client relationship. Readers are advised to seek specific legal
advice from Sherrard Kuzz LLP (or other legal counsel) in relation to
any decision or course of action contemplated.