For the 4 out of 5 who lack such a policy, the risks are higher and just cause is that much harder to prove
Just one in five employers in Canada have a social media policy.
It’s a surprising statistic given the proliferation of online accounts and online users these days, along with higher-profile individuals getting themselves into trouble.
But less than one-fifth (18 per cent) of Canadian companies have a formal social media policy for employees, according to a recent survey by Express Employment Professionals.
And yet 86 per cent of employers say they would fire an employee based on inappropriate posts.
If challenged in court, they may wish they had such a policy already in place because it’ll make things a lot easier, according to two Canadian lawyers.
“The reason that [these dismissals are] challenged, and people are saying it's a wrongful dismissal or… it could be a greater punitive damage for the manner of dismissal is because there wasn't a policy in place. It wasn't made clear to them that that there could be potential discipline,” says Ritu Mahil, a partner at Lawson Lundell in Vancouver.
Why is a policy needed?
So why exactly does a social media policy make sense? For one, it can help protect an employer’s reputation.
“Employers, companies spend so much money on branding themselves and marketing themselves and creating an image online. So, they want to protect their reputation, control their online social media presence,” says Mahil.
The policy is also valuable for protection against unwelcome off-duty conduct and establishing just cause for breach of the policy, she says.
“You want to be in control,” she says. “If your employees are engaging in online activity that could harm the company's reputation or the product or render that employee unable to perform his or her duty satisfactorily, you want to be able to turn to something and say, ‘Look, we have this in writing, you were made aware of it and there are consequences that follow.”
Many people still seem to think that what they're doing online comes with some anonymity, and that that their online persona is different from their work persona, says Mahil.
“But that's not the case... if you're able to connect the two, and where you work and who you work for, then there is no anonymity.”
There's certainly a crossover between the personal and professional, says Mahil.
“It's not different than any other off-duty conduct for which you can be disciplined. You have to think about the nexus into the workplace.”
A social media policy sets the expectations, says Wilson Chan, a partner at Mathews, Dinsdale & Clark in Calgary.
“For the employee, it gives them the guidelines so that they know what the employer expects, and how they will respond if they take certain actions,” he says.
“For the employer, it helps them limit and reduce risk and legal exposure.”
To terminate someone for cause is a very high bar for the employer to meet, says Chan.
“And the employer has to establish that the employee knew that these were the expectations and the rules of the workplace. And notwithstanding those rules, they chose to break them, either intentionally or negligently... and create a situation where possibly the employment relationship can no longer continue.”
If an employer can show that it set out the expectations in a social media policy he says, “you certainly stand a stronger chance than if you didn't have something to show that you set up those expectations in the first place.”
A B.C. worker was fired for derogatory and defamatory comments on social media a few years back, but a court found that she had not been previously warned that her conduct could lead to discipline including dismissal, and awarded her wrongful dismissal damages.
Why private isn’t really private
Of course, many people feel their personal online posts are just that, personal, but by 2022, most people should know that nothing is private if it’s posted online.
“If you are posting something and it's damaging for the employer, its reputation or its product, or you’re making derogatory comments about personnel, people you work with, that is going to be visible to the public, to anybody who knows where you are, then... it could be expressed as contempt for management,” says Mahil.
“If you are, for example, the marketing director or business director or CEO, CFO of a company, and you're posting pictures of yourself at parties, or getting hammered or engaging in behaviour that could harm the reputation of your company, you’ve got to be really careful. It doesn't even have to be anything company-related — it’s image-related, you’ve got to protect the reputation.”
The problem is people don't hold back when they're writing something online, she says, “so they cross over into vulgar, offensive, abusive, sometimes even racist, homophobic comments that aren't appropriate anywhere. But because they're hiding behind the computer, they fail to take the reasonable steps and practical measures that you would if you were actually speaking to someone.”
Social media has evolved, so it’s no longer just about sharing your profile or interests and hobbies, says Chan.
“Now, social media is more driven towards content creation and trying to get as many eyeballs on the post or the comments or the tweet as possible. So, the game really has changed. And I think the policies do have to evolve too, to keep up with that.”
As for anyone claiming freedom of speech or freedom of expression, that right only exists in the Charter to protect people from government interference, says Chan.
“It doesn’t impact the employer making certain rules about how they would like employees to conduct themselves.”
And while employers should be mindful of privacy obligations and not collecting more information than is needed, he says, “they do have the ability to make those rules and make those expectations.”
Last year, a woman who called herself a recruiter posted a video on TikTok caused a stir by expressing strong views about her occupation in relation to a certain group of people.
What should go in the policy?
Basically, it’s a corporate code of conduct that provides guidelines for employees who are posting content on the internet — both during and after work hours, says Mahil.
“The key is emphasizing caution, good judgment and identifying acceptable uses. I think that’s the concern sometimes is we don't want to step too far into the employee’s private realm. But [employers have to] take the opportunity to set clear standards for their employees… ‘What are the consequences of the breach? How do we reflect corporate culture?’ And just keep it clear and simple.”
The social media policy can also emphasize to employees that if there is some kind of crisis involving the company, they should not be commenting online, she says.
“If there's going to be any communication with the media or through social media, somebody from the organization who has been appointed to do it will respond, because that way you can control what’s being said.”
The biggest component is not just having a policy, but making employees aware of it and incorporating it into the training, says Mahil.
“And invite feedback and questions which can allow for a more refined policy that sets out reasonable expectations.”
The CEO of a U.S.-based company that fired a Canadian employee who complained on Twitter about the company’s Christmas gift admitted that his staff may have overreacted — but he stood with their decision.
If an incident happens, it’s important to be fair and reasonable, says Mahil.
“Call the employee in, let them know that something has come to [your] attention, give them the opportunity to remove it, if it is something that is damaging. And sometimes, that can be a simple enough solution: ‘Can you take it down?’ ‘Oh, no, I really firmly believe in anti-vaccine and I hate your policy.’ ‘Well, OK, we’re going to have a problem.’ But you’ve got to engage in the conversation.”
It’s definitely important to train people on the policy and get their buy-in, says Chan, who adds the social media policy can also cover or address related issues such as cybersecurity, confidentiality, harassment and privacy.
