What happens when private laughs make for public spectacle
By Shaun Bernstein
Despite best efforts, no one is politically correct every minute of the day. While laughing at the expense of others can be harmful, who among us is not guilty of enjoying the odd laugh at something bawdy or crass?
Most of us know these jokes should be kept private and are not meant for a greater public forum. Yet when an employee posts a private joke between co-workers onto social media for public consumption, the ramifications can be much larger than intended.
That is exactly what happened in Lorette, Man., with three piping bags full of frosting.
Lorette is a small town of just over 3,000 residents 25 km south of Winnipeg. A 16-year-old part time employee known as L.S. was innocently practising her cake decorating skills on the bakery counter as she was instructed to do.
Deciding to have a little fun with the exercise, she wrote a lewd comment about a co-worker/friend on the counter in three different colours of frosting, including the friend’s social media nickname in the sugary message. L.S. showed her handiwork to her friend, who was amused, and L.S. asked if she could post it to her Snapchat account. The friend did not object.
The post was seen by roughly 50 people, with decidedly negative results and even more serious consequences. L.S.’s mother “bluntly admonished her daughter,” ordering her to apologize to the friend, which L.S. did - and the friendship continued unblemished.
However, L.S.’ employer was less forgiving. The grocery store investigated the incident, and when the store manager called her into a meeting to ask about a “posting on social media from an employee at the store,” L.S. claimed she did not know what he was talking about. A week later, L.S.’ employment was terminated, and she subsequently grieved the termination.
The employer claimed L.S. was terminated not only for her inappropriate actions, but because she was dishonest during her investigation. The arbitrator ruled that L.S. was likely not being dishonest, but had forgotten about the posting, and so was unaware of what the store manager was referencing.
The arbitrator ruled her employment should be reinstated, but she would not receive any salary between the date of her termination and the date of the arbitration decision (almost 10 months) as an appropriate penalty.
The story sounds like an apocryphal fable, and all the more so since the arbitration decision is no longer available online. Yet the case hits interesting notes about workplace investigations, decorum amongst co-workers, and the lack of privacy inherent in social media.
While only an account of the arbitration decision is available, it does sound as though this was a workplace investigation gone awry. When confronted about her social media post, L.S. truly did not appear to know what her manager was referencing, and then was penalized for her perceived dishonesty.
Had the manager followed best practices and informed L.S. of the allegations ahead of or during the interview, it likely would have jogged her memory and allowed her to respond properly. Had she been able to do so, it is more than likely that L.S. would not have been penalized with 10 months of lost salary.
Aside from a seemingly tasteless joke, L.S. may have been an otherwise perfect employee. Moreover, the joke did not appear to offend the intended target, who allowed her to post it on her personal Snapchat account.
But that is not the point. If it was a co-worker who complained they were bothered by the joke, and the employer did not take action on the complaint, the employer’s silence would be seen as condoning such behaviour in the workplace.
This message may have seemed innocuous, as it was clearly in jest, but jokes amongst colleagues based on prohibited grounds of discrimination such as race, creed, sexual identity, or disability are highly sensitive topics which are rarely a laughing matter for HR.
Employees have a right to be free from discrimination and harassment in the workplace based on those protected grounds, and while the employee making light of something may think they’re being hilarious, the audience may disagree.
An individual may feel pressured to laugh along for fear of being left out, but may also feel as though they are being discriminated against, and are within their right to make a complaint accordingly. When it comes to the workplace, one person’s risque punchline is another person’s HR incident report.
Lastly, the case is yet another harsh reminder that social media, especially when posts are marked as public, has quickly bridged the divide between our working and private lives. Derogatory or degrading online posts about one’s workplace or colleagues, even if sent from the confines of one’s own home, may have serious ramifications back at the office. This fact may have been lost on L.S. when she shared the image of her creation on her public Snapchat feed, but it still cost her dearly.
For employers, the lessons are two-fold. First, a proper investigations policy that follows best practices will ensure that employees are not stymied by a surprise line of questioning, as their reaction can significantly skew an investigation’s outcome. The case law has clearly indicated that employees are to be given a fair opportunity to respond to allegations, and not to be ambushed.
Also, well-crafted social media and cell phone policies can prevent the inappropriate and unauthorized use of such technology in the workplace, which would have avoided L.S.’ troubles entirely.
For employees, the harsh reality is that privacy is rarely private anymore, especially when the internet is involved. While more and more employees are governed by policies restricting their social media usage when it comes to the workplace, any would be foolhardy to pretend that coworkers or managers are oblivious to something just because it’s online.
Shaun Bernstein is an associate at Rudner Law in Markham, Ont.