Don't get fired for blogging

Michael Cox feels vindicated by an Employment Insurance board of referees’ decision in April that said he was unjustly fired. But he’d still rather have his job back than back pay.

In January, Cox, a trainee bus driver, was fired for blogging about his employer, Coast Mountain Bus Company, during his probationary period. Now he drives part-time for a tour-bus company. He’s grateful for the work but is hoping to find a better-paying job.

Cox is one of a small but growing number of people who have been let go because of their postings on blogs and social-networking sites—and whose experiences have thrown the spotlight on employees’ right to free speech on the Internet.

“Free speech is for those in power, those with access to the press, but not other people and certainly not employees,” Cox told the Georgia Straight. “Anybody who says anything about their company in a blog, or who has a Facebook page that has something that deals with controversy in it, can be fired.”

Dozens of people worldwide have been fired for their on-line posts, including several Canadians.

Leonard Krog, the NDP attorney general critic, says if the number of incidents rises, the legislature should consider passing a law that would protect employees without being a regulatory burden on businesses.

“I don’t think that loyalty to your employer”¦requires you to keep your mouth shut entirely,” Krog told the Straight. “There’s nothing more disgusting than living in a society where people are afraid to speak.”

Cox had complained on his blog, Short Turns, about delays caused by snow not having been cleared from the roads—a move, he told the Straight, that was “obviously naive and not a smart thing for a new bus driver to do”. He deleted the post after a union representative told him management wanted to discuss it with him.

Coast Mountain spokesperson Derek Zable told the Straight that Cox was fired for “unsuitability”.

One of the first people in Canada to be fired for an on-line post was Jeremy Wright, who’s now the CEO of b5media, a Toronto-based blog network. As a network administrator in 2004, Wright was waiting for Windows 2000 Server to install on an old computer at Winnipeg’s Health Sciences Centre when he posted a blog entry that included this line: “Getting to blog for 3 hours while being paid: Priceless.”

Former B.C. NDP candidate Ray Lam wasn’t fired, but he dropped out of the race in Vancouver–False Creek in April after drawing criticism for photos he had posted on his Facebook profile. Lam, 22, called the five-year-old photos “fairly tame”. He told the Straight he resigned because the controversy would have negatively affected the NDP’s election campaign.

Vancouver labour lawyer Alan Francis said that companies have legitimately fired employees who wrote disparaging letters to the editor, and the Internet is just “a different pigeon”.

Francis and two other labour lawyers interviewed said that workers who aren’t fired for just cause must receive written notice or pay in lieu of notice. The lawyers said that on-line activities could lead to the unemployment line if they involve breaching one’s duty of loyalty to the company, theft of company time, or insubordination.

Lawyer Sandra Banister said that “younger people who have grown up attached to their cellphone and Facebook and their computers” don’t understand that they can’t carry on personal activities on-line during working hours.

According to lawyer Rose Keith, a convenience-store clerk using Facebook on an iPhone while customers are waiting could clearly be fired with just cause. However, she said it would be harder to dismiss an employee who is compensated for work completed rather than being paid hourly. A grey area, she added, would be an administrative assistant who uses Facebook but doesn’t neglect his or her duties.

Workers who violate a company policy or a superior’s orders regarding Internet usage can be fired for insubordination, but employers should give employees a warning, Keith said.

She also said employees should recognize that coworkers have a right to privacy, and that posting personal information about colleagues on-line could infringe on this right.

But, according to Francis, people should recognize they have no right to privacy when using a company-owned computer or network, including a company laptop used at home.

Employees are protected from dismissal for personal, after-hours activity that doesn’t interfere with work, Francis said. They can be fired for defamatory on-line posts about bosses.

There is one “narrow” defence: the whistle-blower defence, designed to protect employees who report their employer’s wrongdoing.

Lam said he plans to run for office again. As a politician, he would look at legal protections for on-line postings.

“The laws will have to be revisited and reevaluated,” Lam said. “Facebook, MySpace, blogs—these are things that were never taken into consideration when these laws were written.”