One of the most striking ways in which modern communication technology has changed the world, including the workplace, has to do with the blurring of distinctions between public and private life. The Internet, social media, email, texts, and cellphone cameras have come together to create fertile soil for a broad-scale social experiment in which it sometimes seems that there is no thought or deed which is not recorded, stored, and often shared.
The Internet can be a virtual paper trail, exposing employees doing things “on their own time” in a way that can end their present employment or potentially their entire career. An employee’s tweets or personal webpage may contain information that, if brought to the attention of an employer, can constitute evidence of behaviour that is considered grounds for dismissal (harassment or bullying of a co-worker, for instance, or negative comments about the employee’s manager or the organization itself).
Indeed, the impugned behaviour need not be linked to the workplace; consider the case of a heckler in a crowd whose anonymity was stripped away after his sexist comments aimed at a reporter were recorded, broadcast and posted online, and whose employer subsequently terminated him.
For employees, there are ample reasons to be cautious. Online evidence of racist, sexist, or homophobic attitudes, criminal inclinations, or the holding of extreme political or religious views, can be toxic. Prospective employers are known to check the social media presences of those whom they are considering for positions and, because information on the Internet is notoriously difficult to get rid of, it is possible for the foolish, ill-considered postings of youth to come back and haunt a person.
Unfortunately, impulsive young people who discuss their use of recreational drugs or who write invective about their “evil teacher” on social media the way they once might have written under lock and key in “My Diary – Private – Keep Out!” are not thinking about the possible future impact on their job prospects.
Of course, youth have no monopoly on the injudicious use of electronic communications or social media. As Eileen Dooley, vice-president of VF Career Management (a member of Verity’s national partnership), stated in an article discussing workplace emails in the context of the Senator Mike Duffy trial, “email no matter who it is sent to, and how many times it is ‘deleted,’ is never gone, and can always be resurrected and, if needed, used to prove a point.” It was experienced (adult) professionals who failed to account for this fact in the Duffy affair.
One must also not assume that any private information which is submitted and stored online or in an electronic databank is not capable of being publicly exposed. The 2015 massive leak from the Ashley Madison “infidelity dating” website proves this point as do past hacking incidents, including the one involving Sony Pictures which resulted in the release of company records and emails.
For employers, as much as employees, this is a new and evolving frontier. Companies need to know how to respond to potentially damaging online conduct or emails. They must also look for and correct data vulnerabilities. This subject will be revisited in future blogs from a legal and non-legal perspective, but for now companies should consider developing a relevant policy and ensuring that employees know what it says regarding acceptable and unacceptable conduct when communicating electronically and through social media. It is next to impossible to take back anything controversial once it has been distributed widely or even worse has “gone viral”.