This paper examines the Canadian and American legal approaches to assessing employee’s claims of unfair discipline over allegedly egregious comments on social media, and argues that the Canadian approach is more flexible and better suited to handle these claims in the social media context. Both countries apply traditional labour law frameworks to manage employee conduct online, despite the fact that Facebook, et al, represent a novel form of communication. However, the two systems are quite different. While American triers of fact examine whether an employee’s social media communications constitute protected concerted activity, Canadian triers of fact apply the doctrine of just cause dismissal. The American framework is problematic, as it cannot always distinguish between employees who use Facebook to advance their workplace interests from those who use it for other purposes. Consequently, American employers may be forced to tolerate an employee’s social media posts, regardless of how malicious they might be.
Jared Teitel, "Fired Over Facebook: The Consequences of Discussing Work Online", online: (2012) 2:2 UWO J Leg Stud 3 <http://ir.lib.uwo.ca/uwojls/vol2/iss2/3>.