Asking employees to refer to the business on their own social media accounts
Question: Can an employer require its employees to use their personal social media to promote the employer’s business? If an employee resists such a directive, can it be grounds for discipline?
Answer: That is an interesting question, particularly in today’s day and age. To begin with, the legal concept that is being discussed is that of insubordination: the refusal to carry out a reasonable order made by an employer. As I have often said and written, any form of misconduct, including insubordination, will justify some degree of discipline but not necessarily dismissal. As I have written about in my book, You’re Fired! Just Cause for Dismissal in Canada, the threshold for establishing just cause for dismissal is quite high. And, of course, it will depend very much upon all of the relevant factors, including the individual’s length of service, disciplinary history and response to progressive discipline.
In order to constitute insubordination, there must be a lawful and reasonable order. The question in this case is whether ordering an individual to use her personal social media accounts to promote the employer’s business is reasonable. I’m not aware of any case that has addressed this issue directly, but, in my view, it may be difficult for an employer to establish that it is entitled to impose such a requirement upon its staff. Unless it can, then it would not be able to impose discipline, let alone summary dismissal, as a result of the employee’s refusal.
Of course, if such a requirement was clearly set out in the employment agreement, then it may be far more plausible for the employer to insist that the employee had an obligation to promote the business in her personal social media accounts. In the absence of such an explicit contractual agreement, however, I would be reluctant to advise a client to impose summary dismissal in such circumstances.
Stuart Rudner is the founder of Rudner Law, an employment law firm in Markham, Ont. He can be reached at email@example.com or (416) 864-8500.