Chipotle lawsuit showcases trials of social media policies

Yes, employers need a policy… but they should tread carefully
By Liz Bernier
|Canadian HR Reporter|Last Updated: 04/18/2016

It’s probably not the resolution it was hoping for but restaurant giant Chipotle learned the hard way that enforcing a social media policy can be tricky. 

A former employee who had been terminated for criticizing the company over Twitter won a major lawsuit in the United States, after an administrative judge ruled Chipotle’s social media policy violated federal labour laws.

The court ordered that the former employee be reimbursed for lost wages and offered the position back. The chain must also post signs explaining the social media policies, as well as others, were illegal, according to media reports.

It’s not a situation that’s likely to unfold in Canada since the two legal landscapes are so dissimilar — and the U.S. is much stronger in terms of freedom of expression — but it’s important for employers to craft a strong social media policy to navigate the tricky waters of employee behaviour online, said Fred Wynne, employment lawyer at Hamilton, Howell, Bain & Gould in Vancouver. 

Crafting the policy

What employers really want to look at — and this is supported by the legal foundation — is what’s the effect on the employer, said Wynne.

“Particularly their reputation because this is stuff that’s being broadcast out to the whole world,” he said. 

“You want to address those reputational-type issues, you want to talk about things like identifying the employer — prohibit that, for example, if that’s something you’re looking to avoid.”

On the other hand, sometimes the employer wants people to represent or promote the company online.

“The focus there is really in terms of good behaviour and reputational conduct. Define what is offside in terms of the way you want people to represent your brand, your business, your company,” he said. 

“Essentially, it’s defining the way that you would like your brand or your business or your organization represented. And that way, you firstly communicate what your expectations are to the employee and give them guidelines, hopefully, and if they breach those, then you have a stronger position (for discipline), if necessary.”

Employers have a bunch of different policies that sit on the shelf and often they cover an issue that never actually happens, said Daniel Pugen, partner at Torkin Manes in Toronto. 

They’ll have a detailed conflict–of-interest policy or code of ethics that never really comes into play.

“At the same time, they don’t have a social media policy, even though every single employee is on social media, most of those employees are using social media at work, they have ready access to it by their smartphones,” he said. 

“Why do you have policies that are probably never going to be used and which impact behaviour that doesn’t happen? Why do you have those policies and, on the flip side, you don’t have policies that deal with behaviour that happens all the time, while the person is actually at work?”

Often, people don’t think before they post, said Pugen. 

“If someone gets frustrated and posts something, it could breach respectful workplace policies, and there are many cases before the human rights tribunal where something posted on Facebook is found to breach the company’s workplace harassment policy.” 

And it can still be considered workplace conduct even if it’s posted online and it’s posted outside of working hours. 

“It should be there — just as employers have Internet use policies, they should have a social media policy. That’s especially the case if they’re issuing company cell phones to employees.”

Managing digital natives

For younger employees, especially, social media is a prevalent part of their lives, said Doug MacLeod, principal at MacLeod Law Firm in Toronto. 

“They’re connected all the time and they’re sharing information all the time. And when they get to the workforce, they continue doing that, and sometimes don’t appreciate the consequences and how it can adversely affect their employer,” he said. 

“I think there is some responsibility on the part of the employer to, at the outset of the relationship, sort of set the boundaries for what’s acceptable and what isn’t. And that, of course, can be done by way of a social media policy.”

There’s no one standard policy, he said. 

“Some don’t have to be that comprehensive given the nature of the work or the workforce, and some have to be tailored quite carefully. But the main thing is you want to make sure that people don’t inadvertently breach company policy while they’re using social media,” he said. 

“The situation that we see most often in the case law is when the employee is biting the hand that feeds it by criticizing its employer or supervisor online.”

Avoid knee-jerk reactions

But employers get into trouble when they jump the gun on an issue, when they don’t think of the larger legal and HR consequences, said Pugen. 

“It’s the same with any behaviour. Employers need to sit back, engage management, have a discussion with human resources, engage legal if appropriate, review their own policies, review the employee’s own record, review whether the actual conduct is something that is made in isolation, whether it actually impacts the business… that’s the big test for off-duty conduct and social media, is whether the conduct reflects poorly on the company and brings their reputation into disrepute.”

The recent Hydro One case that saw the termination and then reinstatement of employee Shawn Simoes — who supported the insult of an on-air reporter — is just one example, he said.

“The person was reinstated… even though he said something that was deplorable, it would be pretty tough for the company to suggest that was something that really impacted their reputation or their product line or their business. I think most people would know that it was someone who said something stupid at the wrong time.” 

The best policy is to avoid jumping to conclusions, said Wynne. 

“Do your due diligence, which includes collecting all the information. The caveat is it really depends on the severity of what the employee did,” he said. 

“If it’s something really egregious… or something that connects to the employer directly, then that might be just cause and that might be justification for a quicker reaction. But it’s always a good idea to collect information and make an informed decision. Do the due diligence, at least get the employee’s side of the story, and try to consider the greater picture of how overtly is this person representing the company — if at all?”

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