In February 2016, an obscure Yelp/Eat 24 employee, Ms. Talia Jane, made international headlines for writing an open letter to Yelp’s CEO Jeremy Stoppelman. In her letter published on the social media platform Medium, Ms. Jane narrated the woes associated with living on entry-level compensation in San Francisco’s Bay Area. Bread, she wrote, “is a luxury to me, even though you’ve got a whole fridge full of it on the 8th floor.” She continued, “your employee for your food delivery app that you spent $300 million to buy can’t afford to buy food. That gotta be a little ironic, right?” Within hours, Talia’s employment was terminated for violating Yelp’s Terms of Conduct.  In an update announcing her termination she wrote the following:

 

UPDATE: As of 5:43pm PST, I have been officially let go from the company. This was entirely unplanned (but I guess not completely unexpected?) but any help until I find new employment would be extremely appreciated. My PayPal is paypal.me/taliajane, my Venmo is taliajane (no hyphen). Square Cash is cash.me/$TaliaJane. Thank you so much for helping my story be heard.

 

What’s interesting about Ms. Jane’s update is that she recognized her termination was perhaps “not completely unexpected”. Nonetheless, she posed a question mark at the end of her acknowledgement signaling the possibility that maybe it should be. Her remarks, after all, were logged while off work, on social media, ubiquitously used by billions around the world. Why then was she disciplined?

 

To some extent, Ms. Jane can be forgiven for her naivety. Most employees consider their social media activities to be personal and private. Often, the social platforms themselves provide the construct for privacy. Popular social media platforms such as Facebook, Twitter, Instagram and Snapchat all offer users the ability to customize their privacy settings, list(s) of friends and who sees what. However, courts have held that an individual does not have a strong privacy interest in the content posted on social media (see, Kourtesis v. Joris, 2007 CanLII 26284 (ON S.C.), Murphy v. Perger [2007] O.J. No. 5511, and Leduc v. Roman, 2009 CanLII 6838 (ON S.C.)). The rationale is quite simple: social media sites are, by their very nature devised to facilitate the publishing and circulation of information to the public. An employee’s social media accounts are therefore fair game for employers, and imprudent uses of social media which links to a company can attract consequences, even when the conduct in question occurred while off-duty.

 

Canadian Jurisprudence

 

In the modern age of social media, Canadian courts and arbitrators have found that off-duty social media conduct to have negatively affected an employer’s interests in typically the following circumstances:

 

1. where the conduct affect the rights of other employees and/or the employer, and

 

1. where the conduct could detrimentally affect the employer’s reputation.

 

In some instances, the employer may be affected in both circumstances.

 

In Tenaris Algoma Tubes Inc. and USWA, Local 9548 (D.), Re, 2014 CanLII 26445 (ON LA) an employee with three and a half years service was terminated after he posted vexatious comments on his Facebook page regarding a female coworker he became frustrated with on the job. Although he didn’t name the coworker in question, his comments over a two-hour period included her work ethic, distinctive physical characteristic, and suggestions of performing physically aggressive and violent humiliating sexual acts. The post was visible to all his Facebook “friends” including co-workers and could be accessed as well by the general public. In upholding the employer’s termination, Arbitrator Trachuk stated the all too obvious “making nasty comments on Facebook is not an acceptable response to frustration with a co-worker” (paragraph 41). Furthermore, she disagreed with the Union’s suggestion that progressive discipline should have been imposed, as the conduct was off-duty, and Tenaris policies did not specifically stated one could be disciplined for conduct carried out on social media. She found the conduct in question was intended at poisoning the environment shared with his female coworker, and succinctly noted: “an employee does not necessarily get one free sexual harassment before he loses his job” (paragraph 51).     

 

In another case of airing one’s frustration, namely, Corner Brook Pulp and Paper Ltd. and CEP, Local 64 (Stokes), Re, 2013 CanLII 87573 (NL LA) the employer terminated an employee with thirteen years of service after she posted derogatory and profanity-laden comments about fellow co-workers and staff on her Facebook account following an acrimonious workplace incident.

 

The threatening and derogatory comments were aimed at her employer and supervisors who were named in the post. The employee’s Union did not dispute the discipline imposed but submitted that there were mitigating circumstances and asked the Arbitrator to reinstate the grievor with a one month suspension. The employer submitted that the grievor’s comments had damaged the employment relationship beyond repair.

 

In pleading her case, the employee, who suffered from anxiety and had stopped taking her antidepressant medication, attributed her comments as an isolated act, “crazy”, “absolutely nuts”, and “horrible and disgusting” (paragraph 24).  In upholding her termination Arbitrator Oakley disagreed, finding that “the posting was well structured and indicates an organized writing process” (paragraph 56), a far cry from that of a “crazy and delusional” person.

 

Comments Contrary to the Employer’s Policies and Philosophies

 

In Credit Valley Hospital v. Canadian Union of Public Employees, Local 3252 (Brathwaite Grievance) [2012] O.L.A.A. No. 29, the grievor was discharged after he posted pictures of an outpatient who had jumped to his death. The grievor, an Environmental Service Representative, was assigned to assist in cleaning up the scene. In support of its decision, the Hospital took the position that the grievor violated its Code of Conduct and breached the confidentiality of patient, employee and corporate information. Arbitrator Levinson agreed, noting at paragraph 14 that it is well understood “the all-encompassing notion of confidentiality of patient information, [is] a cornerstone in the present health care context.” To impose a lesser discipline “would send the wrong message or a mixed message about the gravity of employee misconduct for disclosing confidential patient information without authorization” (paragraph 22).

 

Along similar lines, in Wasaya Airways LP and Air Lines Pilot Association, International (Wyndels) [2010] C.L.A.D. No. 297, the grievor pilot was discharged for a Facebook posting that was deemed contrary to the employer’s policies and philosophies. In the posting it stated “You know you fly in the north when…” and listed ten things that could be considered racially derogatory against First Nations. The employer, owned by First Nations communities with a primarily First Nations customer base in Northern Ontario, argued that the posting could be potentially damaging to the Company’s reputation and the discipline imposed was justified. Arbitrator Marcotte determined that while the grievor did create a circumstance of potential harm to his Company’s reputation, it was weakened to the extent that the posting did not identify the Company. However, given the grievor does travel to First Nations communities, the misconduct does have the potential to render the grievor unable to perform his duties satisfactorily. Also, Company management expressed reluctance to work with the grievor and although the posting was removed, the possibility was still present that First Nations community could sanction the Company, which could be detrimental financially. Consequently, the termination was upheld and varied only to the extent that the griever was awarded four months compensation, with the termination substituted with a resignation.  

 

Conclusion

 

By year 2017 users of social media will rise to 2.55 billion, or in other words, one in four persons on the planet. That’s a lot of “friends” who are interconnected. For employers, the potential danger to business is real and limitless whether they are dealing with one incident of a social media rant or a few. For an employee, the consequences for berating your co-workers and company as demonstrated above are also real. Off-duty conduct on social media, while it might be akin to “shoptalk” or venting at the pub, is anything but. And no matter what your privacy setting may be, your social media activities are fair game for disciplinary action.

 

So next time before you vent your frustrations about work, post a photo instead of what you ate for breakfast. It’s expected!