Lawyer recommends policies that cover the fact that 'postings can cause damage to the business and consequences may follow'
When someone says or does something awful on social media, the blowback can be swift and furious.
If that same person is identified as an employee of a certain organization, this can reflect poorly on that employer.
So what should leaders and HR do to prevent this type of occurrence?
“It can cause damage to the business [but] you just have to prove the reasonable prospect of it,” says Cameron Wardell, partner at Mathews, Dinsdale & Clark in Vancouver.
Air Canada was faced with this situation recently when it grounded a pilot for making “unacceptable posts” about the war in Gaza.
Another recent case came to light when a town councillor, in Pickering, Ont. just east of Toronto, made troubling comments about her treatment at work. Calling herself a “modern-day slave,” Lisa Robinson took offence at the town’s integrity commissioner’s decision to sanction her for comments made via Facebook.
Hazards for employers to be aware of
There are inherent reputational risks when people make such controversial statements, and employers need to keep on top of it, says Wardell.
“Problematic posts could range from criticism of customers or clients, posts reflecting poorly on the employer’s operations or practices, posts including confidential information about an employer or other employees or other offensive material that reflects poorly on an employer, including posts of offensive beliefs or activities and involvement with hateful or groups or illegal activities.”
For some employees, the risk might be even greater due to the type of job they have, he says.
“There can be a special sensitivity for people in roles where they deal with the public, or they represent an organization publicly… and maybe having social media policies is especially important for them.”
Social media policies
But what control does an employer have over an employee’s social media life? There are some effective policies that should be enacted, according to Wardell, though they don’t need to be so extensive as to address every single potential issue or consequence.
“It may be sufficient to advise employees of the fact that anything posted on social media may be public, that they should be cautious about what they post, particularly where it involves or implicates the workplace, and that problematic postings may impact their employment, including that they may be terminated for the content of them.”
There are clear topics that should be covered in such a document, he says.
“A good starting point is the acknowledgment of social media as presumptively public, the fact that postings can cause damage to the business and that consequences may follow for improper posting by an employee. Employers could consider adding detail and context to any number of types of postings depending on their industry or the employee’s role as well.”
For example, it may be valuable to include prohibitions on posts related to customers or customer interactions for sales employees.
“It may be similarly valuable to specifically prohibit posts that would identify clients or patrons of industries where privacy is important such as counselling or dealing with minors, and it may be valuable to address the problematic nature of postings reflecting poor attitudes towards safety or impairment by employees in industries where safety or judgment is critical.”
By adding in specific instances of what employees should not to do or say, this could allow the employer to best police online behaviour, he says.
“I think that would be a terrific idea. Why not have a policy that prohibits that kind of conduct generally or that points out that ‘That will reflect negatively on you, and your association with us might mean that it reflects negatively on us, and those are not ideals we support.’”
Luckily, while employees behaving badly online is relatively common, it’s often not serious, says Wardell.
“It often doesn’t reach the level of a court or a decision but particularly at organizations with lots of employees, there are issues arising relatively frequently about employees making thoughtless posts: the big one I see is venting about dealing with customers.”
A senior recruiter was recently dismissed after xenophobic rants were posted to Reddit.
Employee privacy must be maintained
For HR looking to conduct an investigation into potentially inflammatory comments, confidentiality is a crucial consideration, he says.
“Employers must also exercise caution to ensure that they only gather information about employees or from social media in a way that can be justified as reasonable as related to their business and should always notify employees of the prospect of this form of collection.
“Collecting too much information or particular types of information can generate difficult situations for employers and even call into question human-rights concerns,” says Wardell.
