Facing Discipline For Facebook Postings

Edited by Jennifer M. Fantini and Naomi E. Calla

More than ever, Facebook and other social media networks serve as a means of communication and a source of information. However, two recent decisions show that these networks can also serve as mediums for off-duty misconduct and that their misuse by employees can lead to disciplinary action. A posting on a Facebook page that harms the reputation of an employer may be grounds for discipline. Although the poster may have a perceived sense of privacy, this perception may not justify one's conduct online.

One of the first clear analyses relating to termination of employees for a post on Facebook was provided by the British Columbia Labour Relations Board (the "Board").

In United Food and Commercial Workers International Union, Local 1518 v. Lougheed Imports Ltd. ("Lougheed Imports"), two employees of an automobile dealing and accessory shop were terminated for posting offensive statements about their employer on their Facebook accounts.1

The posts included homophobic comments, angry status updates and violent statements regarding management figures. The postings named the employers, called them crooks and warned the public not to spend their money at the shop.

During the employer's investigation, the employees did not accept responsibility for their misconduct. One of the employees alleged that comments were not made by him at all and were the result of another party hacking into his Facebook account. The employer terminated the employment of both employees for cause.

The Union filed complaints with the Board and argued that the dismissals were motivated by anti-union animus and constituted an unfair labour practice. Moreover, the union argued that the Facebook comments did not irreparably sever the employment relationship and as such, did not justify termination.

The Board found, as a preliminary matter, that because the comments were published on Facebook and were accessible to hundreds of "Facebook friends", there was no expectation of privacy. The Board held that the comments about management amounted to insubordination. Moreover, the Board concluded that the nature of the comments constituted "egregious" misconduct and justified termination.

The analysis of the Board in Lougheed Imports was applied in Wasaya Airways LP and Air Line Pilots Association International, to determine whether a unionized employer had just cause to terminate a pilot for comments he made on Facebook.2

The employer...