In today’s world, social media has changed the way in which employers and employees interact with others, both inside and outside of the workplace. Some interesting statistics:
- In 2018 82% of Canadians owned a smartphone
- In 2013 $136 billion worth of goods and services were sold online in Canada
- 91% of all Canadian businesses with more than 10 employees has a website
- 41% of Canadian businesses use social media to steer clients to their website
As Paul Lomic, a Canadian lawyer who specializes in social media law stated,
“Social media is powerful, penetrating, and persistent. If as an organization you do not incorporate it as a valid and useful organizational tool, you are guaranteeing that you will fall behind.”
With the explosion of the internet, social media has blurred the lines between one’s personal and professional life, and how one’s use of social media can either positively or negatively affect an organization’s reputation (branding), business interests, and the workplace environment. This blurring has also led to employers being sued, employees being disciplined, in some cases fired, all because of their social media use, both on and off the job. Here are two examples from here in BC:
Lougheed Imports Ltd. v. U.F.C.W., Local 1518
In this case, two employees of West Coast Mazda were terminated because of Facebook posts that were described as “offensive, insulting, and disrespectful” and targeted management, the business, and the products sold by the company. Upon termination, the union filed unfair labour practice complaints to the British Columbia Labour Relations Board alleging wrongful dismissal and that the employer did not have just cause for termination. The Board ruled against the union and stated that, “the work offence was serious insubordination and conduct damaging to the employer’s reputation.” The termination was upheld.
EV Logistics v. Retail Wholesale Union, Local 580 (Discharge Grievance), [2008] B.C.C.A.A.A. No. 22 (“EV Logistics”)
An employee had been terminated given the content of an off-duty blog that they owned that contained violent fantasies and racist comments. The personal blog of this employee also identified EV Logistics as the blogger’s employer. The employer argued that the termination was justified because the contents of the blog were “offensive, racist, and hateful” which caused harm to the employer’s reputation and business interests. In this case, the arbitrator found that there was indeed a connection between the blog postings and the business interests of EV logistics. However, the arbitrator also found that there were sufficient mitigating factors to justify a reduction in the termination and the employee was reinstated without compensation as a penalty.
Yes, employees can be disciplined or even terminated because of their private, off-duty, digital dossier online only if an employer can prove a nexus between an online posting and its negative effects to a company’s reputation or workplace environment.
With the convenience of social media comes business vulnerability and liability which include:
- Misuse of social media by employees
- Civil, criminal, and labour liabilities
- Loss of customers
- Brand or reputation management
Today’s organizations and employers need to ask themselves these questions when it comes to their social media use:
- “Do we have a social media policy?”
- “Do we clearly outline how an employee can use our company’s brand online?”
- “Have we provided the appropriate use of social media training to our staff?”
- “If we allow employees to use their personal devices at work (BYOD), do we have policy dictating its use?”
Once again as Paul Lomic states,
“Employers should have policies and language that address social media use in and out of the work place. Employers need to ensure that they appropriately monitor their employee’s social media usage, and where necessary take quick action to prevent misuse.”
Remember, a well set out social media policy can reduce liabilities and set the tone in the employee/employer relationship as to what is acceptable social media conduct. A well set out social media policy also spells out an employer’s level of tolerance as to social media use, and also outlines consequences of a breach to a company’s social media policy. A good social media policy that addresses the use of technology and social media in the workplace can also provide substantial legal weight when it comes to and employer taking corrective actions against an employee, which may include termination.
We here at The White Hatter provide organizations with an overview of best practices that can be implemented to help prevent undesirable outcomes due to the use of social media in the workplace. Our program, “Social Media Policy, Procedure, & Code Of Conduct Primer” https://www.thewhitehatter.ca/social-media-policy-organizations will provide the information needed to help employers reduce liability and provide them with best practices specific to policy, procedure, and codes of conduct to help protect both the employer and employee.
Darren Laur
The White Hatter
