Social media has eroded the line between our personal and professional lives. There have been many cautionary tales about employees’ ill-conceived posts or videos going viral. Some of those posts were ultimately grounds for termination. Having clear social media policies can protect both the employee and employer from liability and undesirable publicity.
Although platforms such as Instagram, Facebook, Snapchat, TikTok and Twitter offer users creative multimedia options for communicating ideas and expressing opinions in real time, users should remain conscious of the implications of posting certain content. While all individuals are afforded an expectation of freedom of expression and privacy, this expectation is not unlimited or impenetrable. In certain circumstances, an employee’s expectation of freedom of expression and/or privacy can be set aside, and an employee may find themselves in hot water due to inappropriate social media posts.
The general rule in employment law is that employers have no jurisdiction or authority over what employees do outside of work hours, unless the employer can show that its legitimate business interests are affected in some way. In order for an employer to discipline an employee for misconduct committed off-duty, the employer must prove that the behaviour in question damages its reputation, renders the employee unable to perform their employment obligations, causes other employees to refuse to or be reluctant to work with that person, or inhibits the employer’s ability to efficiently manage and direct the production process.
An employer may only terminate an employee for off-duty conduct in certain circumstances. Termination for conduct that occurs away from the workplace will depend upon the severity of the employee's misconduct, the severity of harm the employee has caused to the employer company or a co-worker, the employee’s history and employment record, and whether the employee has taken steps to accept the consequences of their actions and has acted to repair the situation.
The legal test for whether an employer may discipline or dismiss an employee based on their social media or other internet activities is if (1) the activity rises to the level of misconduct and (2) the misconduct is harmful or likely to be harmful to the employer’s interests or reputation.
Other important factors to consider in the context of social media posts are whether the employee:
- indicates in some way that they are an employee of the employer
- represents they speak on behalf of their employer; or
- makes posts that reference or identify their employer, co-workers, clients, workplace or events at work
Despite this high threshold, there are numerous cases where employees were terminated for inappropriate social media posts. One example comes from a 2018 Ontario Labour Arbitration award, whereby an employee of York University was terminated following an investigation into his activity on social media, which included a series of anti-Semitic posts. The arbitrator concluded that the posts constitute the dissemination of hate propaganda within the meaning of and contrary to York University’s Hate Propaganda guidelines, through the promotion or incitement of hatred against an identifiable group. Further, aggravating factors were that the employee had repeatedly associated his Facebook account with his employment at York University and when questioned about his conduct, the grievor exhibited little to no insight into the problematic nature of his posts. As such, the Arbitrator upheld the University’s termination.
In another decision of the Ontario Labour Relations Board, a Toronto firefighter’s employment was terminated for inappropriate off-duty use of his Twitter accounts. The firefighter made a series of comments on his personal Twitter account which were sexist, misogynist and racist. Some comments were offensive in their discussion of people with disabilities, some were offensive in their references to homeless people, and one comment invaded the privacy of others.
The firefighter claimed that he thought he was only communicating with his followers and that his privacy settings prevented the public from accessing the content. He learned that this was not the case when three of his tweets were featured in an article published by the National Post. The firefighter clearly identified himself as a Toronto firefighter on his Twitter account.
The Ontario Labour Relations Board stated:
“… but when engaging in social media use, it is my view that the user must accept responsibility when the content of his or her communications is disseminated in exactly the manner promoted by the social media provider. This is what social media is intended to do. Once we use these devices, once we load that gun, it is potentially dangerous.”
The evidence presented before the Labour Board established that there was not just potential, but actual damage to the reputation of the employer in the circumstances. The termination was upheld on the basis that the remarks illustrated that the firefighter could no longer perform his employment duties to satisfaction because his position required him to bring honour to his uniform. The Labour Board stated:
“I have to wonder if a deaf person, a woman in labour, a homeless person, a member of a visible minority group, apprised of his comments, would welcome this man into their home.”
Hate speech and inappropriate content are not the only kinds of posts an employer may rely on to terminate or discipline an employee. For example, the termination of a corrections officer was upheld after her social media posts showed that she had lied to her employer concerning a recent bereavement leave. The employee told her employer that her father passed away and went on bereavement leave to attend his funeral. As it turned out, the employee’s father was not deceased and the employee had actually used that leave to go on vacation to Mexico. This was discovered by one of the employee’s co-workers who saw Facebook posts made by the employee in an album titled “Mexico 2011”. The Public Service Labour Relations Board held that the employee’s actions had broken the trust with her employer and the termination was upheld.
The list of Canadian employees terminated for inappropriate off-duty conduct on social media goes on and continues to grow.
However, not all off-duty conduct warranting discipline will always warrant termination. In the 2017 Nova Scotia Labour Arbitration Awards decision dealt with anonymous complaints raised against three unionized employees with respect to inappropriate posts on social media. Two of the employees who posted received sensitivity training from the employer, but one of the employees, who had a record of previous social media misconduct and had already received training on the topic, was terminated for the inappropriate Facebook posts. The Union attempted to argue that since the employer did not have a social media policy, that it should not be permitted to discipline for off-duty conduct on social media. This argument was not accepted, as the employer had clearly communicated that respect for customers is a core value as indicated in the Employee’s Handbook. It was evident that the employee was aware of her duty to be respectful to the public. Further, the Arbitrator held that Employees should know that social medial may be relevant to off-duty conduct, and that this point is now well-established in the case law. The Arbitrator determined that the employee’s post was insensitive and disrespectful about a community that, because of its history, has a strong sense of pride and has endured decades of unfair criticism and prejudice. It was determined that the employer had just cause to discipline the third employee, but held that termination was excessive in the circumstances.
In closing, content posted on social media may be viewed as a representation of not only yourself, but also a representation of those associated with you in your personal and professional life. A good rule of thumb for those concerned about the implications that a private post may have on their professional life: do not post anything on your personal social media page that you would not post on a bulletin board in your workplace.
For employers, it should be recognized the importance of setting out expectations of appropriate social media conduct of their employees through the implementation of a social media policy in the workplace. A proper social media policy will not only advise employees as to what posts may be deemed inappropriate but will also advise as to the potential disciplinary consequences should such policy be breached, which will hopefully avoid any damage to an employer’s reputation or business.
This article is part-one of a two-part series that aims to highlight the importance of creating, establishing, and implementing social media policies in the workplace.