By Vita Gauley
From inappropriate posts on Facebook to distasteful tweets disparaging an employer’s business – some employees have now found themselves out of a job as a result of their use of social media. As social media becomes the new norm of communication what has traditionally been considered a matter of one’s private life may have impact on the employment relationship. Employers are faced with managing the impact of these “traditionally private” communications on their business.
A Hydro One employee found himself unemployed after inappropriate sexualized comments were made on live television at a sporting event. This highly publicized case shows how off-duty conduct can have a significant impact on the employment relationship.
Traditionally, it has been very difficult for employers to monitor the off-duty conduct of employees unless there was a reasonable connection with the employment relationship. Courts and administrative decision-makers have recognized that employers have a right to protect their business interests if an employee has damaged their goodwill and adversely affected their ability to manage their business. The analysis involved a review of several factors: the nature of the employee’s duties and the employment relationship, the nature and seriousness of the employee’s conduct and the impact of that conduct on the employer’s business and reputation have all been considered.
In recent news, in Northern Ontario, an arbitrator upheld the termination of an airline pilot who was dismissed as a result of Facebook postings containing racist, disrespectful and derogatory comments about the company’s owners and customers. The arbitrator noted that in making comments online, the “individual doing so must be assumed to have known there was a potential for virtually world-wide access to those statements” and found that there was a connection to the airline, even though the employee did not identify his employer. Given that the particular airline was both owned by and serviced many First Nations customers who may have been offended by the comments, the arbitrator found that the company was justified in its concerns about potential reputational harm.
Ontario Courts have maintained a similar view that generally there is no reasonable expectation of privacy that will attach to social networking posts. This will open the door for employers to develop social networking policies governing employee conduct that may impact its business, employees and the individuals it may serve.
With the widespread news of the extramarital affair website Ashley Madison and the release of millions of names and user information, it will be noteworthy to see how many workplaces were implicated either by way of key employee users or through the use of employer emails to log into and use the site. Whether or not such disclosure will be sufficient for a just cause termination will largely depend on an employer’s internet/social media policies and whether or not employees are subject to certain public perception or moral turpitude clauses in individual employee contracts that protect the employer’s public image as represented through its employees.
If you blog or have a Facebook, LinkedIn, Twitter, Instagram or other social networking accounts, it is best to assume that your employer or a potential employer will see what you have written. This is not the place to post pictures of yourself socializing for example zip lining when you have commenced a leave of absence for a back injury that prevents you from attending work. Remember that you have probably ‘friended’ at least one co-worker and that person might share your posts with your boss.
Prospective employers may take the opportunity to check social media outlets during the hiring phase. Consider what you post, tweet or tag. A good rule of thumb is don’t post it if you wouldn’t yourself agree to include it in a company newsletter, in your personnel file or attached to your employment application.
Employers should consider that social networking may traverse the line from personal life to the workplace and require an employer to respond to allegations of harassment and/or workplace violence prohibited by the provisions of the Occupational Health and Safety Act. To minimize the risks posed by social networking, employers should consider appropriate social networking, internet and blogging policies that are tied to their workplace violence, harassment, confidentiality and code of conduct policies. While the case law still recognizes a distinction between private and professional lives that line is becoming blurred, it is important for employers to recognize that off-duty conduct matters and can negatively affect both their business, reputation and the workplace dynamic. Remember the saying “what happens in Vegas stays in Vegas”?…Well….in the world of social media…what happens in Vegas is there for the whole world to see.
Vita Gauley is an Associate in the Labour & Employment team of Lancaster Brooks & Welch, where she can be reached for any labour and employment matter you may wish to contact 905-641-1551.