Social Media and the Employment Relationship

January 23, 2012

The perception that employees have no expectation of privacy – that, like a uniform, this is a sacrifice made in exchange for a pay cheque – is increasingly unrealistic. With society’s heightened awareness of privacy laws, it is now accepted that privacy is a right and not a privilege. Accordingly, it is generally accepted that employees are entitled to a reasonable amount of privacy in and outside of the workplace.

In general, what employees do on their own time is their own business but, when employee conduct either “on or off the clock” negatively impacts the employer’s organization, then it becomes of the employer’s business.

Employers have the right to know if employees are doing the job they are paid to do; they have a right to protect their assets, their investment, their reputation and brand, and they have a duty to provide a safe and harassment-free working environment.

Nowhere is the conflict between the employer’s right to manage and the employee’s right to privacy more apparent than in social media: Facebook, Twitter, LinkedIn is everywhere. It has become a fundamental way of communicating and perhaps the modern way of doing business. Social media makes constant contact and instant communication with business and personal contacts easier than ever.

Not surprisingly, employees’ social media activity can affect an employer’s reputation and image, impacting business operation through the diversion of corporate resources and decreased productivity and bandwidth. Employee statements on social media can result in employer liability for defamation, harassment, discriminatory comments, links to illegal or pornographic sites and even workplace injury. Many Canadian employees have been disciplined or fired on grounds that include insubordination, time theft, breach of confidentiality, breach of the duty of loyalty – all as a result of their use of social media.

More and more, employers are engaging of employee social media monitoring, but privacy advocates, such as the Federal Privacy Commissioner, have sought to strike a middle-ground between the employer’s right to manage its business through monitoring and the employee’s right to privacy. In essence, the Commissioner recommends that monitoring be a last resort, taken only after concluding that it is necessary, effective in its stated purpose, proportionate in benefit to the privacy sacrificed, and no more intrusive than any alternate action.

With the particular relevance to the construction industry, the popularity of hand-held mobile devices such as cell phones, Blackberrys and iPads, raises another issue: distraction.

The hazards are obvious. Mobile devices are distracting not just for the attention required in using them but also because the conversation or activity itself engages the individual on something other than the job at hand. Devices can get entangled in machinery or interfere with personal protective equipment, for example, hands-free earpieces can undermine hearing or head protection and texting can result in removal of safety gloves.

In recent years, there have been numerous reports of serious injury and death arising from worker distraction rooted in use of hand held mobile devices. In British Columbia, an engineer talking on his cell phone walked across a dump truck staging area and a tire snagged his leg, pulling him under the truck and killing him. In Georgia, a person working as a “spotter” on an airport runway expansion was talking on her cell phone or CB radio and did not notice the stop signal – she struck and killed someone. In Massachusetts, a subway driver was texting his girlfriend just before his trolley slammed into another trolley near an underground station, injuring more than 60 people. In California, a collision between 2 trains killed 25 people and injured 201 more because an engineer ran a red light while text messaging.

Some view social media as the way of the future, but its implications are much more immediate; without a balance between reasonable expectations of privacy and good workplace management and safe practices, misfortune is inevitable. Clear policies based on mutual respect, and a little common sense, represent the best practice for everyone.

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