Staying above the social media fray

It can be easy for people to get drawn into social media controversy, including employees

Staying above the social media fray

Social media can be a great way to connect with people – and it can also be a cesspool.

That’s something of which people should be aware, especially if their social media interactions are part of their job or they can be easily linked to their employer or their professional occupation.

Recently, a woman who calls herself a recruiter posted a video on TikTok expressing strong views about her occupation in relation to a certain group of people. The video has had more than 2.3 million views and has come to the attention of the Human Resources Professionals Association (HRPA) – of which the maker of the video has been identified as a member.

The HRPA tweeted that it didn’t condone the content of the video and would review its Rules of Professional Conduct to see if there was a breach. While in this case it’s a professional organization reviewing its member’s conduct, a similar situation could happen if the individual’s employer was identified and associated with it.

Employers have struggled with managing social media in the workplace since it became a thing. The question of what they can legally do if an employee posts something offensive or harasses someone online that can be difficult to answer, although there have been instances of the issue being addressed in employment law circles.

What type of action the employer can take depends on several factors, including the risk to the employer’s reputation, any effects on other employees, and whether the employer has clear social medial and employee conduct policies that have been breached.

About five years ago, a U.S. woman made the news when she gave “the finger” to then-president Donald Trump’s motorcade as it drove by her while she was riding her bicycle. She posted the photo on her social media account and when her employer found out, it fired her. While Trump was a divisive figure while he was in office, her employer was a government contractor and it felt that if she was identified as its employee, its business could suffer. It also felt that the photo was “lewd” and “obscene,” which violated its social media policy.

The state of Virginia, where the incident took place, is an at-will employment state. Employers there don’t have to have a good reason to terminate someone’s employment if it’s not discriminatory, so it wouldn’t be that simple if something similar happened in Canada. However, bad behaviour on social media can have consequences north of the border as well.

Online harassment, confidentiality, and losing trust

Back in 2012, the Ontario Human Rights Tribunal (OHRT) found that online harassment between employees that occurs outside of the workplace and outside of working hours could contravene harassment in employment provisions in the province’s Human Rights Code in certain circumstances, as postings on “electronic media may be part of an extension of the workplace,” meaning that the employer’s obligation to protect employees from workplace harassment could include social media activity. That means employers would have to take action if they become aware of it.

Also about a decade ago, an Ontario worker got into trouble because of work-related social media posts regarding a settlement she had reached with her employer for a human rights complaint. The employer tried to get the settlement voided because the worker breached the agreement’s confidentiality clause. The OHRT agreed that the worker shouldn’t have posted about the settlement, but she still deserved something for her complaint. The employer was ordered to pay the employee, but the amount was reduced because of the confidentiality breach.

Online comments that can cause the employer to lose trust in the worker, be harassing to other employees, or are related to the job may require a response by the employer. Back in 2007, retirement home worker criticized the conditions where she worked in her blog. An arbitrator upheld her dismissal for behaviour that was “insolent, disrespectful, and insubordinate.” In 2013, the OHRT found that a worker’s Facebook comments and messages to co-workers calling her manager a racial slur constituted harassment under Ontario’s Human Rights Code. And in 2016, the Toronto Transit Commission was found liable for failing to immediately delete several hateful tweets directed employees sent to an employer-run Twitter account.

A little more recently, a B.C. worker’s response to his employer’s holiday gift made the news. The worker was expecting a gift basket similar to previous years, but when he received a bottle of barbecue sauce and a wooden grill scraper instead, he was less than impressed. He tweeted a negative comment about his company from an anonymous Twitter account, but he tagged the company’s account in the post. The worker was identified and promptly fired for violating the company’s employee conduct policy.

There’s a lot of controversy on social media these days, and most companies would prefer to stay out of it. When employees cause trouble online that it could affect co-workers, the company, or the company’s values, the employer will likely have to take some action to address it and keep the social media presence of the company and its employees out of the cesspool.

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