Monday, September 12, 2011

Web 2.0 in the Workplace: Caught Red-Handed

Sometimes, people seem to think that a post on Facebook is like a secret whisper to a confidante.

It isn't.

Not only is it visible, potentially to countless people, but it's in writing, and is essentially indestructible.  It's like carving something in stone and then prominently displaying it on the town square.  I once saw somebody convicted criminally for an offence, where the Crown relied heavily on the fact that the person admitted to the crime on Facebook.  Also, in personal injury suits, there is increasing jurisprudence requiring plaintiffs to produce their Facebook records, and if those records don't mesh with your tearful tale of how lonely and inactive you've been since the accident, guess what happens?

In the employment context, the main lie that Facebook could give up relates to "abuse of sick leave".  You've called in sick, faked your best cough, told your boss that you're just going to lie in bed for the day...then your best friend posts and tags a cell phone photo he takes of you when you catch a foul ball at the Jays game, inconveniently incorporating a datestamp into the corner of the image.  Or worse, you're on a paid or unpaid leave from work, saying that you can't perform the essential functions of your job because of a disability, and you start posting statuses about how much you're enjoying playing hockey, or golfing, or white water rafting.  It's bound to raise eyebrows if anyone at work catches wind of it.

I've seen fact patterns involving a fellow off work with back pain, who ended up in the local paper when he won a golf tournament.  Oops.  Or another individual who was off work because of a knee injury, but a local paper ran a community interest story about people skating at the local community centre, and he happened to be caught in the photograph they ran.  These are fundamentally similar.  And the conclusion is usually that the employee is in deep trouble when this happens.  Or how about the teacher who, while off on disability leave, took another teaching position with a different school board?

As always, whether or not this sort of thing constitutes just cause for termination is deeply contextual.  The fact that somebody is alive when not at work is not, in and of itself, misconduct, and even where there is misconduct, its severity will vary significantly.  An employer, getting word that an employee seems to be doing something incongruous with their claimed illness, needs to investigate, but should not immediately jump to conclusions.  As I recall, the fellow with the knee trouble ended up getting reinstated because it was concluded that his failure to return to work when he was able was not bad faith - when his doctor gave him a note saying that he needed x days off, he figured he'd go back to work after x days, and didn't realize that he should have returned to work immediately upon becoming able.  Another relevant factor is whether the leave is paid or unpaid.  Where an employee is on an unpaid disability leave and working for another employer, it's usually just dishonesty.  Where the employee is on a paid disability leave and working for another employer, it is usually fraud - the employee is, for all intents and purposes, stealing from the employer (or the disability insurer), which is much more severe.

The two main challenges for an employer are, firstly, that the employer will not always know the nature of the medical condition, and in fact is not entitled to know the nature of the medical condition, and secondly that the employer will occasionally have difficulty establishing that the employee understood their obligations in respect of their sick leave.  I've seen arguments made that "The employer didn't contact me to return to work, so I thought I was okay."

So an employer, faced with prima facie evidence that the employee is abusing sick leave, must move cautiously.  Surveillance evidence, under these circumstances, has usually been found in Canadian jurisprudence to be admissible, so talk to a lawyer about getting a PI on the case to flesh out the case beyond the strict contents of the facebook status, photo, or other report.  Remind the employee of his obligation to report for work if he is able to do so.  Conduct an interview with the employee to establish/confirm the specific medical limitations which prevented him from attending work, and ask him what extra-curriculars he engaged in while off work (give him the opportunity to be truthful...or not), and consider getting an independent medical expert to determine whether or not the activities he engaged in were consistent with the medical limitations he described.  (The golfer argued that his doctor had suggested golf as a treatment for his back problems.  The argument didn't fly in that context, but the underlying principle is sound:  Perhaps I have a physical job that a disability prevents me from doing...well, just maybe the kinetics of sport x are not the same, and therefore my limitations on working may not apply in the same way to my sport.)


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer. 

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