First edition - HR corner

Staff/student blogs:
Risk management tips for school jurisdictions

Disgruntled employees sometimes take to cyberspace to share their unhappiness about their employers. These cases illustrate the risks of taking your complaints about your employer to the blogosphere.

In the 2007 arbitral decision Chatham-Kent (Municipality and C.A.W. Canada, Loc.127 (Clarke Grievance) an employee was fired due to her inappropriate website postings and her breach of confidentiality to the company.

A Personal Care Giver who had worked for a retirement home in Ontario for eight years created a blog to communicate with three colleagues who were no longer working at the same site as her. When she set up the website – it was posted in a public location – not privately as she had intended. The employee believed her communications were private. In fact she only discovered how public the blog was when management questioned her about it.

Her blog featured:

• comments about how lazy and slow a specific co-worker was
• comments that she had been blackmailed by management and underpaid for all her overwork
• inappropriate comments about some of the residents
• insolent, disrespectful and contemptuous comments about management
• comments expressing her displeasure with management decisions
• pictures of residents entrusted to her care (several of whom she referred to by last names)
• personal information regarding residents (posted without their consent)

The retirement home fired her for insubordination and breach of the confidentiality agreement she had signed when she was hired. She grieved her termination.

The arbitrator upheld her firing, in spite of her apology for her conduct and eight years of service, writing:

… in creating her blog the grievor made two major errors. The first was in establishing a public website, and not the private one she had evidently wished to create. The second was that she breached the confidentiality agreement with the information about residents she placed on her blog, and was insubordinate in the way she discussed certain matters about the management and operation of the Home. Additionally, the whole tone, manner, and the tasteless language she used to graphically discuss aspects of her daily work activities at the Home, address the perceived strenuousness and unjustness of her work day, and berate the work ethic of some of her co-workers, was inappropriate and conduct unbefitting a Personal Care Giver. She has provided the employer with cause of discipline.

The arbitrator added that employees in the health care sector are held to a high standard in matters of confidentiality of personal information. Accordingly, severe disciplinary consequences may arise out of breaches of this confidentiality.

In Poliquin v. Devon Canada Corporation (PDF), 2009 ABCA 216, the Alberta Court of Appeal ruled that an employee can be fired for inappropriate Internet use at work, highlighting that an employee's inappropriate Internet use could potentially harm the employer. The court noted that employers have a right to set the ethical, professional and operations standards for their workplaces:

… Doing so not only falls within an employer's management rights, it also constitutes an integral component of corporate good governance. The workplace is not an employee's home; and employees have no reasonable expectation of privacy in their workplace computers. It therefore follows that while employers may permit employees limited personal use of workplace computers, the employer is entitled to restrict the terms and conditions on which that use may be permitted. Devon did just that. Employees are permitted to use Devon's equipment "for limited personal use", but such use must be in compliance with the Code of Conduct (…)

The Clarke arbitral decision and the Poliquin decision tell us that school boards are justified in setting parameters around how employees use the Internet, especially if the material accessed, received or transmitted via the Internet is discriminatory and/or pornographic. An employer's reputation could be compromised if an employee were to inappropriately access and use the Internet made available to him/her at the workplace.

Blogging in an education setting

Teachers are held to a high standard in matters of confidentiality of personal information, particularly student /parent and staff information. Teachers, staff and students may publish personal staff, student, or parent information on their blogs which a school jurisdiction does not want shared or which should not be posted online. School boards may be held responsible for their employees' inappropriate Internet use, including inappropriate disclosure of personal information under FOIP. The following tips may be helpful to school jurisdictions to develop policy with regard to staff and student blogging. We recommend you have these policies reviewed by a lawyer prior to their final approval by your school jurisdiction.

What should be in your policy?

• State whether students or staff may use school computers to blog.
• If blogging is allowed, clarify acceptable and unacceptable practices.
• Staff and students should not make discriminatory and defamatory statements.
• Staff and students should not post: personal information within the control of the school jurisdiction to the public at large; confidential information of and retained by the jurisdiction to the public at large; or libellous statements.
• Outline the consequences of breaching the Internet and email policy including and up to terminating staff. For students, consequences may include suspension and/or a recommendation of a student expulsion depending on the severity of the Internet-related conduct.

In managing staff and student blogging practices, school jurisdictions should continue to update their trustees, teachers, staff, and students about appropriate Internet use and continue to update and review their Internet use practices and agreements. This review could also include a discussion with staff and students about the parameters of appropriate blogging and Internet use in relation to the workplace and school. Teachers, staff and students should know that if their blogging or Internet use affects the workplace or school, there may be legal implications for both themselves and the school jurisdiction in areas including confidentiality, defamation, and intellectual property.