Internet Surfing and Facebook: Twice the Risk for Professionals

By Kate Hughes

Professionals should be warned that they face double the risk of others when found to be using workplace internet for inappropriate purposes. Professionals can be found to be in violation of School Board, Hospital, and other workplace policies and subject to discipline by Employers in workplaces, but as regulated professionals, they run the added risk of putting their professional licences at risk.

A number of Unions are warning their members to avoid using the social networking website, “Facebook”, personal blogs, or similar websites on the job. With respect to Facebook and other popular websites, young professionals in particular, who use such websites frequently may not fully appreciate that if they put inappropriate workplace jokes or images (or even state their opinions of their employers) on such websites or blogs, they are putting both their employment and professional licences at risk. There have been an increasing number of investigations and discipline imposed by Employers in Ontario and across the country relating to the misuse of such internet sites.

This new minefield of social networking websites adds to pre-existing cases where Employers like Government Ministries, School Boards, Academic Institutions, Hospitals, Nuclear Plants and others have performed audits resulting in discipline of professional employees who use workplace computers to access the internet to view or distribute offensive material such as pornography, sexist, racist or other inappropriate material.

Professionals who are most at risk are those who work with young persons, including teachers or health professionals who care for children. Numerous professional Colleges, have issued decisions imposing penalty ranging from revocation to lengthy suspensions:

• In some cases involving teachers, there have been a number of revocations by the Ontario College of Teachers where teachers were found guilty of allegations dealing with surfing the net, downloading child pornography or other pornographic/offensive material. The College has found that teachers found to have accessed, downloaded or distributed pornography are “not suitable to be in a position of trust and authority over children” and have held they must impose the penalty of revocation.
• In other cases involving child pornography or anything that could be construed as child pornography (such as trying to access questionable websites) have also resulted in harsh penalties short of revocation. For example, surfing the net and not actually downloading pornography will result in findings of professional misconduct. In the case of teachers, they often receive lengthy suspensions and must, at their own expense, attend sensitivity training that is monitored by the College’s registrar, and obtain psychological assessments. They must also provide reports prior to returning to the classroom to establish that there is no risk to students and/or the community. Other Colleges appear to be less harsh, generally imposing one to three months’ suspensions, publicizing the finding, as well as sometimes requiring counselling and monitoring.

Professional Colleges have found the professional guilty of both professional misconduct and “disgraceful, dishonourable and unprofessional conduct”. Professionals are no longer able to claim that they were not aware that such conduct is considered inappropriate. Professional Colleges take the position that professionals should know that such behaviour is considered unprofessional, even absent a specific publication of employer policy dealing with pornography in the workplace. Given that Colleges have now published decisions on their publications or website on internet misuse, Members of the College are deemed to know that such conduct is a transgression of Professional Standards.

Unlike at arbitration, Discipline Committees do not consider factors such as whether other professionals are engaging in similar conduct, whether there is widespread abuse in certain workplaces, or whether the Employer has condoned misuse of the internet. This type of evidence has been admitted at arbitration to convince Arbitrators to return employees to the workplaces where Employers have turned a blind eye to employees circulating jokes and accessing pornography during slow periods at work.

For instance, both the Ministry of Corrections and Ministry of Natural Resources of the Ontario Government performed a sweep of employees computers and a large number of employees were disciplined, and some terminated, for either receipt or distribution of pornographic material on work computers. Arbitrators adjudicating individual grievances have reduced discipline and returned employees to the workplace when they found that certain employees’ conduct was not more serious than the conduct of other employees, or where the Employer had known about such conduct and not acted on it previously. Professional Colleges do not enter into this line of reasoning.

Colleges consider mitigating certain circumstances, such as no prior discipline history, evidence of remorse, whether the member has insight into the problem, received therapy, and whether the matter was an isolated incident in the individual’s history. They also consider aggravating circumstances, such as whether the professional denied the unprofessional conduct when it was brought to their attention, whether the professional exposed other employees to the downloaded materials by distributing it, whether the professional attempted to implicate others, and whether the professional was well-regarded by their employer.

Even if the abuse of the internet is widespread or condoned in the workplace, this is not a defence recognized by Colleges. As well, Discipline Committees at Colleges will not decline to discipline because an employer has already taken disciplinary action. Professionals should be warned that they will face discipline proceedings likely not once, but twice, when found to have misused the internet.