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Business has embraced the power of Web 2.0, but employers need to address the darker side of this new phenomenon.

The recent decision of Alberta v. Alberta Union of Provincial Employees (R. Grievance), [2008] A.G.A.A. No. 20 confirms that employees can be dismissed for blogging about work. Although the decision is good news for employers, it also shows what can happen when  employers don’t speak with  employees about how Web 2.0 can affect their careers or establish Web 2.0 policies to effectively manage expectations of online conduct.

In Alberta Union, the grievor, an administrative employee in the Alberta Public Service, testified that she viewed the blogs as a safe place to put her thoughts.  In her blogs, she dubbed a supervisor “Nurse Ratched,” referred to a client who accessed an appeal mechanism as someone who ratted her out and painted a number of her co-workers in a satiric and derisive manner. 

Although she often used aliases to protect the privacy of her co-workers, the blogs eventually came to the attention of her employer and co-workers and the identities of fellow employees were easily recognized.  Many of the employees who eventually read the blogs testified that they were hurt by the entries and that they would have difficulty working with the employee in the future. 

The grievor was recalcitrant when confronted by management. She admitted to asking her supervisors at the meeting if there was some law she had broken and that she had answered their questions with the assertion that she had freedom of expression.  She also stated that at the time she had no idea what she had done wrong.

In upholding the dismissal, Arbitrator Allen Ponak noted for the majority of the board “[t]hat a blog is a form of public expression is, or ought to be, self-evident” and held that the grievor, by “expressing contempt for her managers, ridiculing her co-workers, and denigrating administrative processes, engaged in serious misconduct that irreparably severed the employment relationship.” The grievor’s lack of remorse also played a role in the decision. 

Although the dismissal was upheld in Alberta Union, not all Web 2.0 posts that an employer finds distasteful will provide grounds for discipline or termination.  Blogging or Facebooking at work is one thing, but the general rule regarding discipline for off-duty conduct is that an employer is not the custodian of their employees’ private lives.  Exceptions are made when, as it was found in Alberta Union, the posts irreparably harm the employment relationship.  This can include conduct that:

• prevents employees from performing their duties satisfactorily;

• interferes with employees’ ability to work effectively with fellow co-workers;

• breaks confidentiality policies or employees’ duty of fidelity to the employer;

• harasses or defames management or fellow employees;

• deliberately attempts to undermine management’s ability to direct its workforce; 

• harms the company’s reputation (however, rank and file employees may be held to a lower standard than those employees who hold higher positions of trust or responsibility).

Counsel should encourage employers to take measures to prevent the sort of conduct that attracts discipline in the first place.  Having a discussion with employees is a good start.  The general tenor of blogs and social networking sites is akin to casual conversation, and, naturally, many people will talk about work. 

Unfortunately, as Alberta Union illustrates, many employees are unaware Web 2.0 conduct can affect their careers and attract legitimate sanction. Pointing this out to employees can save both the employer and the employee a lot of grief.

The next step is to put a Web 2.0 policy in place.  A policy should require that any Web 2.0 use, whether under pseudonym or not, be conducted in accordance with the company code of conduct.  It should also:

• emphasize that any confidentiality or non-disclosure agreements with the company apply to the Internet in general and to Web 2.0 applications specifically; 

• state that the posting of any defamatory or derogatory comments about co-workers or management on the Web is prohibited; 

• state that obligations under the policy cannot be discharged by author anonymity or the omission of client or company names;

• recommend that any blog maintained by an employee have a disclaimer stating that the opinions expressed in the blog are the author’s own views; 

• outline the specific consequences for breaches of the Web 2.0 policy.   

As with any policy, a Web 2.0 policy should be regularly disseminated throughout the workforce.  This will not only ensure that the employees are aware of expectations, but, if required, allow the employer to rely on it for disciplinary purposes.

Mary Gleason, a partner at Ogilvy Renault, is the Ottawa chair of the firm’s Employment and Labour Group.  Her practice is restricted to employment and labour law, and she acts exclusively on behalf of management.