Published in CELT (Canadian Employment Law Today Issue No. 484 – April 25, 2007)
THE RECENT BANNING of Government of Ontario employees on May 2, 2007 from access to Facebook, the popular social networking site originally launched for Harvard University in February 2004, has sparked international attention from employees and employers regarding the scope of employer control over internet access in the workplace environment. The barring of access to Facebook by the Government of Ontario has raised important issues regarding the extent to which an employer can reasonably restrict their employees’ use of the internet while at work. Simply, are employers within legal rights to ban access to Facebook, and similar sites, from the workplace?
The backlash against Facebook is largely due to a concern over derogatory comments and a decrease in workplace productivity, which are both valid concerns with respect to the workplace. There are currently 21 million Facebook users worldwide, and Canadians spend on average of 29.6 minutes per day on the social networking site. Its increasing popularity among employees and employers alike is a cause for concern, and is likely one of the principle reasons for the Government of Ontario’s ban of Facebook over another less popular social networking site called MySpace. Companies are entitled to establish ground rules to regulate employee behaviour, including employee use of company electronic media equipment to ensure such equipment is not used to damage the employer’s reputation, and guard against time theft or excessive personal use.
The City of Toronto has also followed the province’s lead in blocking employees’ access to Facebook, except those in the offices of the mayor and 44 councillors. According to city agencies, the reasoning behind this ban in Toronto is because Facebook has little relevance to municipal work. For Ontario Government employees, as well as MPPs and Cabinet ministers, and city of Toronto employees, Facebook joins the likes of other verboten sites as pornography, gambling, dating and YouTube, a free video viewing website.
Courts view employee’s use of the internet in the workplace as use of corporate assets, and should be used for business purposes. Personal use of the internet while at work need not only include accessing or distributing inappropriate material in order to warrant a ban of a particular website and disciplinary measures. It should also include excessive use, which can lead to “cyber-slacking” – employees who spend their time doing anything but working, abusing company time and money.
One of the most egregious examples of an employee’s excessive use was illustrated in the 2000 case of Syndicate Canadien des Communications, de l’energie et du papier, section local 522 c. CAE Electronic Itee (grief de Petruzzi), where the Arbitrator concluded that the employee committed time theft and upheld the employer’s decision to terminate the employee. In this case, the employer found that during the four and a half month span in which the employee claimed approximately 480 hours of overtime, he had also spent an exorbitant amount of time online. The employee spent about 300 hours on the internet. According to the Arbitrator, the actual content of information the employee accessed was irrelevant. Rather, it was the amount of time wasted along with the employee’s claim for overtime that justified disciplinary action and termination. Clearly, where employees overuse or excessively use their internet privileges while at work, which leads to a waste of company time, resources and productivity, employers are justified in taking disciplinary action. Dismissal, however, should be viewed as a last resort and for extreme cases of employee abuse of company assets.
There are also matters of policy at play. Premier Dalton McGuinty indicated that the Government does not view Facebook as adding value to the workplace, but Facebook proponents argue that the Ontario Government’s decision to ban access to the website further isolates the Government from the public it serves. In banning a site from access by employees, employers must bear in mind the potential usefulness of certain internet sites with respect to their company’s productivity and capital gain. The bottom line for employers, however, is the importance of producing and consistently enforcing a workplace internet policy, which must clearly address the following:
the amount of reasonable time employees can spend using company equipment to access non-work related websites,
whether an employer has the right to ban a website altogether,
whether employees’ internet access privileges can be revoked or limited at any time, and
the type of internet access on company equipment, which are strictly verboten, such as time theft or excessive use, pornography and employee blogs containing defamatory content about the company.
Since employers have control over company assets and internet access on workplace computers are deemed to be a use of company assets, then it is only reasonable that internet access to Facebook should fall under the control of employers. Employers should, ideally, have discretion to limit or revoke access to sites such as Facebook At present, the Government of Ontario can revoke or limit their employee’s internet privileges. Government employee non-work related internet privileges should have a higher threshold of scrutiny because, in addition to wasting the Government’s assets, Government employee use of Facebook amounts to time wasted at the expense of the tax-payer, unlike private enterprises. Employers can strengthen their ability to control assets, such as access to the internet at the workplace, by clearly and expressly indicating in their company policy that they have the right to revoke, limit and regulate workplace internet privileges. In addition, the restrictions noted within the policy should be implemented and enforced on a consistent basis.
As a result of the banning of Facebook in the Government of Ontario and the City of Toronto, employees in private enterprises may soon find an “Access Denied” message on their computer monitors similar to the one Government of Ontario employees received: “The Internet web site that you have requested has been deemed unacceptable for use for [work purposes].” It is at the discretion of the employer to determine whether certain employee internet access privileges are appropriate for their workplace. There is nothing wrong with sharing information via Facebook or other social-networking sites, but not on company time, with the use of company assets and at the expense of the employer.
Authors: Ronald S. Minken, B.A.(Hon.), LL.B.; Ronald gratefully acknowledges Andrea Lim, 2nd-year University of Windsor law student, in preparation of this article.