Social media and employment law

Currently, the world is in a social media frenzy. Individuals of all ages are participating in the phenomenon. Social media is used for many different reasons be it to connect with an old friend from school, share vacation pictures or vent work frustrations. Individuals should be careful though. Social media posts, such as expressing negative opinions about the clients/customers of one’s employer or making disrespectful comments about co-workers and/or supervisors, may hold consequences for one’s employment.

Off-duty conduct, which includes posting on social media websites, will be considered misconduct that can result in discipline or termination if:

1. The conduct of the employee harms the employer’s reputation;
2. The employee’s behaviour renders him/her unable to perform his/her duties satisfactorily;
3. The employee’s behaviour leads to refusal, reluctance or inability of other employees to work with him/her; or
4. The employee’s conduct makes it difficult for the employer to carry out its function of efficiently managing its business and/or directing its workforce.

In other words, the social media post has to have a real and material connection to the workplace in order to substantiate disciplinary action in the workplace. To make this determination, the courts take into account all relevant factors and have considered the following:

• The tone and content of the postings: Were the postings offensive, abusive to co-workers or supervisors, highly personal and/or of a sort that undermined managerial authority?
• The number of posts: Was it a one-time occurrence or were there multiple posts of this nature?
• Where the post was made: Was the post made while the employee was at work or on the employee’s own time?
• Whether the employee was provoked: Was the employee provoked, did the employee have a chance to remove him/herself from the emotional impact of provocation and was the post a reasonable response to the provocation?
• Any link to the employer in the post: Did the employee identify the workplace or any co-workers and/or supervisors?
• The response of the employee after being confronted about the post(s): Was the employee apologetic or remorseful and did the employee take responsibility for his/her actions?

Lastly, it is not a defence to say that the comments were never intended to be public. It also may not be enough to set privacy settings on the social media site to limit the posting’s audience. The court can infer from the number of “friends” that have access to the employee’s social media site that the employee did not have a reasonable expectation of privacy.

The reality of social media sites is that privacy and secrecy can never be guaranteed. Where the Internet is used to display commentary or opinion, the individual doing so will be assumed to have known the potential for virtually world-wide access to the statement.

In summary, employees need to be careful about what they post on social media sites. A good rule of thumb to live by is — if you wouldn’t say it at work, don’t say on it on the Internet.