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Social Media and Your Employees – Can an Employer take action for social media posts made while an employee is off-duty?

Labour and Employment Newsletter – Summer 2017

Social media has revolutionized the way people communicate and for many, it has become an integral part of their everyday lives. Employees are often unaware of how their social media presence can have serious consequences in the workplace, and could lead to discipline or even discharge.  This newsletter provides an overview of the law regarding employee social media use while off-duty and employer rights to take action in response.

As social media continues to gain in popularity, it was only a matter of time until it became a workplace issue.   Because social media is so pervasive, employees and employers can both benefit from a greater understanding of off-duty social media use.

The law has long allowed an employer to discipline an employee for off-duty conduct.    An arbitrator or other adjudicator will uphold discipline or even dismissal if the off-duty conduct has an impact on the workplace.   The level of consequence would depend on the seriousness of that impact.   That law is now being applied to situations involving an employee’s off-duty social media presence.

The arbitrator/adjudicator will assess whether the social media use had a detrimental effect on the employer’s business. This does not mean that the conduct needs to be aimed at another employee or directly related to work, although those situations would certainly give an employer the basis to take some action against the employee.   Even beyond those clear-cut situations, an employer can discipline or even discharge an employee if the employee’s off-duty social media presence resulted in one or more of the following:

  1. Harm to the reputation of the business or its product;
  2. An employee rendered unable to perform job duties to satisfaction;
  3. Other employees refusing or being reluctant to work with that person;
  4. A serious breach of the Criminal Code; and/or
  5. Disruption of the otherwise efficient management and function of the workforce.

As with any discipline, employers must still be mindful of progressive discipline.   For example, in Amalgamated Transit Union, Local 508 v Halifax Regional Municipality, 2017 CanLII 10897, an HRM bus driver made inappropriate Facebook posts when she was off work. The comments portrayed a particular community on her bus route in a very bad light and the Employer worried that these comments would harm the reputation of Halifax Transit. The Employer dismissed the employee for just cause.  We note that this employee had previous discipline on her file.  To draw the connection between off-duty Facebook posts and work, the Employer led evidence of co-workers from that community who were deeply offended by the comments and said they would not work with the grievor again. Some of the co-workers saw her posts, and they shared it with other co-workers. Further, co-workers testified that they were very upset by the posts, and that the posts led to disruptions at the workplace and conflict between employees. The arbitrator readily concluded that the grievor’s post had a “real and material connection to the workplace”.

The arbitrator also found that the grievor’s post had significant potential to harm the Employer’s reputation. She specified that her conclusion was not based on evidence of widespread harm but rather “as a matter of common sense, it is reasonable to conclude that” the grievor’s posts would be upsetting to residents of the community she maligned.

Based on those conclusions, the arbitrator found that the grievor’s conduct warranted some discipline. However, she felt that the damage to the Employer’s reputational interests was not so substantial that the grievor’s on-going employment was untenable. The arbitrator went on to consider the impact of any potential mitigating factors. She subsequently concluded that the termination was not warranted and she imposed a 30-day unpaid suspension instead.

The general list of mitigating factors includes:

  • Publicity – this includes the nature of the social media platform used (i.e. private e-mail versus public tweet), the number of Friends or followers who can view the initial post, and whether the post has been reproduced or shared.
  • Privacy – whether the employee has changed their privacy settings so their posts are only seen by Friends may be a factor, though this is not usually given a lot of weight and will be minimized if the employee has other past or present co-workers listed as their Friends.
  • Connection to employment – the arbitrator would ask: is a third party capable of drawing a connection between the poster and the Employer? Does the employee hold themselves out to be representative of the business?
  • Seriousness of post – if the contents of the post relate to violence (including sexual), contravene the Employer’s harassment policy, or otherwise lead to criminal or quasi-criminal sanction, they could lead to significant discipline or even dismissal.
  • Provocation – an employee may raise the defence of provocation if the online outburst is the result of a single, upsetting event. However, if the employee continues to make harmful posts after the heat of the moment has passed, this defence is less likely to work.
  • Intent to offend – this asks whether the employee only meant the comment as a harmless joke or if they actually intended to upset the recipient, which may have an impact on the decision.
  • Employee remorse – whether the employee has apologized for their behaviour or instead blamed the victims has been cited as an important factor.
  • Length of service – Generally, an employee with longer service will be more secure than a more junior employee.
  • Consistency – arbitrators may ask whether the Employer has been consistent in condemning this kind of behaviour before.
  • Previous similar allegations – whether the employee has been engaged in, and disciplined for, similar behaviour may be a deciding factor, especially when finding whether discipline or dismissal is more appropriate.
  • Alcohol – as most social media posts happen at home, employees might claim that alcohol played a role and should be a mitigating factor.

What steps can an Employer take?

To avoid misunderstandings about the potential consequences of inappropriate social media conduct while off work, an employer should establish a clear policy. In Kim v International Triathlon Union, 2014 BCSC 2151, the fact that the Employer did not have any social media, communication, or internet-use policy meant that the grievor’s many inappropriate and unprofessional posts did not establish “cumulative cause” for dismissal.    There were other factors at play in that case too; the employee should have known her conduct was inappropriate as she was the Senior Communications Manager and the Employer was aware of her posts for over a month before reprimanding her. However, a lack of a policy was the main factor in this decision.

This policy should refer to off-duty and personal accounts as well as any corporate social media accounts.

Employers must also educate and remind their employees about these policies.

Furthermore, as social media is constantly changing, these policies must be updated regularly.

Here is a list of points to keep in mind when drafting or reviewing a social media policy:

  • Decide whether you want employees to be able to list your company as their place of employment online – having a social media presence, such as a Facebook page, can be valuable for business, but it can also result in various social media situations.
  • Let employees know under what circumstances (if any) it is permissible to speak on behalf of the company and any disclaimers employees should use when expressing a personal opinion related to employment.
  • Include a list of information employees are never allowed to share online (such as internal communications, performance data, and employees’ personal information).

Whether an employer has a social media policy or not, it should respond to potential situations quickly, whether it is a customer complaint directed to the business’s social media account or an inflammatory blog post from an employee’s personal webpage. This includes protecting employees who are victims of employment-related online harassment.

Conclusion

Social media has come to represent modern communication, whether in a 140-character Tweet or a viral video. Where employees once vented about their workplace at break-time, much of this communication has transferred to the online world. Employers and employees alike must be mindful of the responsibility the internet presents and must learn to protect themselves from liability stemming from social media.

 We hope that the information in this newsletter will help you deal with any such situation in your workplace.   If you are unsure of how to proceed, we urge you to consult legal counsel.

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