Freedom of speech doesn't mean freedom from consequences
Employees can be disciplined for social media posts that disparage employer
Jun 9, 2014
By Stuart Rudner
I recently attended the International Association for Human Resource Information Management (IHRIM) conference in Anaheim, Calif., and presented a discussion on social media in the workplace.
The discussion focused on employee misconduct, a topic which has been discussed many times in this blog. After reviewing various incidents and potential scenarios, we discussed ways in which employers can protect themselves. Of course, as regular readers already know, the best way to do so is to have clearly worded policies in place which set out what employees can and cannot do. Policies should be specific, so that employees cannot use ambiguity against the employer.
Furthermore, employers should make sure that everyone in the workplace, including management, is aware of the policies. Efforts should be made to monitor compliance and, when employees breach the policies, discipline should be imposed. Otherwise, even if there is a very strongly worded policy in place, the employer may be unable to enforce it if a court or tribunal finds that they effectively condoned breaches.
We also discussed how employers can use social media for good, such as for the purpose of screening applicants in the hiring process, as well as for monitoring mitigation efforts after an employee has been dismissed.
In the course of our discussion, one of the attendees raised a question about freedom of speech. Since we were in the United States, and the majority of members of IHRIM are American, his reference was to the First Amendment, but I explained that Canada's Charter of Rights and Freedoms provides for freedom of speech as well.
The question related to how this relates to the idea an employee could be disciplined or dismissed for what they say, particularly when this occurs away from work. In other words, if we have a charter that guarantees freedom of speech, how can someone's speech be used to justify firing them? As social media has become more prevalent, and discipline for employees' online conduct has become more common, this is an issue that has arisen many times. In most cases, you will often hear the somewhat naive declaration that we have freedom of speech, and therefore what somebody says online, on their own time, shall not be used against him.
This is, unfortunately for individuals, completely inaccurate.
Our charter guarantees freedom of speech, though even that is limited in certain circumstances. This guarantee means that, with certain exceptions, an individual will not be subject to criminal prosecution or conviction as a result of what they say. Of course, it has been limited by hate laws and other legislation. However, even accepting the general principle that what you say cannot be used against you, this does not apply to every context. Rather, it protects individuals from criminal prosecution. It does not mean you cannot lose your job, or be suspended from school, or suffer any adverse consequences.
As a general rule, what you do on your own time is none of your employer's business. However, discipline will be warranted where your conduct, including online comments, has a negative impact on the employer or the employment relationship. For example, posting something that will impact the reputation of your employer, or making inappropriate or harassing statements about your colleague, or insulting your supervisor, can all be used in order to justify discipline, including, potentially, dismissal.
Employees should be aware of this, and should also realize that freedom of speech does not mean freedom from consequences. As a result, you should think long and hard before posting anything that may be seen by your employer as having a negative impact upon them or the employment relationship. Otherwise, you may find yourself out of a job.
Stuart Rudner is a founding partner of Rudner MacDonald LLP in Toronto. Follow him on Twitter @CanadianHRLaw
. He can be reached at firstname.lastname@example.org