When private becomes public
As social media becomes increasingly present in the workplace, employees and employers alike must educate themselves on the implications of social media use both in the workplace and outside of the workplace.
The line that divides an individual’s private life is blurred by society’s overwhelming use of social media. Platforms such as Instagram, Facebook, Snapchat and Twitter serve as revolutionary ways to communicate ideas, thoughts and files; however, users should remain conscious of the implications of posting certain content on their own time and during work hours.
There are countless horror stories of employees posting content on social media forums on their own time and on their private accounts, only to discover that their employer has gained access to the content in a direct or indirect manner and is less than impressed with the conduct of their employee. These stories should serve as cautionary tales to those who are active on social media in their personal capacity as well as through employment.
One such cautionary tale is that of a 30-year-old former senior director of corporate communications at a large U.S. communications corporation who tweeted “jokes” about the indignities of travelling on her journey from New York to South Africa. After she tweeted a few particularly heinous “jokes” including, “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white,” she shut off her phone for the duration of her flight. When she arrived in South Africa, she turned on her phone to find that her Twitter account had exploded with other Twitter users expressing their outrage with her so-called jokes. The retweets took off and eventually made their way onto the devices of her employers. Her employment was terminated thereafter.
In 2009, a Canada Post clerk with 31 years’ experience was terminated for speaking poorly about management and the company on Facebook. The woman made more than 30 postings containing derogatory and mocking statements about her supervisors and Canada Post. In some of the posts, the woman suggested she had a voodoo doll of one of her supervisors and if she had not been drinking, she “would take her out on the driveway and run over her.” The employee’s discharge was upheld at arbitration.
In 2011, a former on-air host for Rogers Sportsnet was terminated after he publicly tweeted his disapproval of gay marriage. As an on-air host, the former employee was one of the public faces of Rogers Sportsnet. The employee filed a complaint to The Canadian Human Rights Commission against Rogers Sportsnet in 2013. The complaint was dismissed.
In 2010, a pilot with 3.5 years of service with Wasaya Airways posted a comment on his Facebook page that was disrespectful to First Nations people. Neither the comment nor his page directly identified his employer. However, at arbitration, it was determined that the post was so offensive that it undermined the employment relationship and had the potential to harm Wasaya Airways’ reputation, a company owned by several First Nations that predominately provides services to First Nations communities. Due to mitigating factors, the pilot was forced to resign instead of being dismissed.
The list of Canadian employees terminated for inappropriate off-duty conduct on social media goes on.
Employers should be aware of the necessity of a social media policy in the workplace. The policy should provide clear information and direction to employees and employers on their rights and obligations with respect to social media both in and outside of the workplace. Social media policies should also provide the employer with authority to investigate potential social media misconduct.
Employees should be made aware that their social media presence outside the workplace does not always remain outside the workplace. When content or the identity of a social media user can be traced back to the workplace, which can be easily done, employers may have recourse where their reputation, public perception or financial wherewithal has been damaged. All individuals are afforded an expectation of privacy; however, the expectation is not unlimited or impenetrable, and depends upon the circumstances. In certain circumstances, the expectation of privacy that all employees are afforded can be set aside.
Employment law is applied in the same fashion with respect to an employee who is disciplined on the basis of off-duty conduct. The basic rule remains true: employers have no jurisdiction or authority over what employees do outside of work hours, unless the employer can show that its legitimate business interests are affected in some way. In order to discipline an employee for misconduct committed when he or she is not on duty, the employer must prove that the behaviour in question detrimentally affects its reputation, renders the employee unable to discharge his or her employment obligations, causes other employees to refuse to or be reluctant to work with that person or inhibits the employer’s ability to efficiently manage and direct the production process.
Off-duty conduct can lead to termination in certain circumstances. Termination for conduct that occurs away from the workplace will depend upon the severity of the misconduct engaged in by the employee, the severity of harm the employee has caused to the company or a co-worker, the employee’s history and employment record and whether the employee has taken steps to accept the consequences of his or her actions and has acted to repair the situation.
Once something private becomes public, employees are at risk of discipline and recourse from employers. Accordingly, care and caution must be exercised before posting something on social media.
In a decision of the Ontario Labour Arbitration Board, a Toronto firefighter’s employment was terminated for inappropriate off-duty use of his Twitter account. The firefighter made a series of comments on his personal Twitter account, which were sexist, misogynist and racist. Some comments were offensive in their discussion of people with disabilities, some were offensive in their references to homeless people and one comment invaded the privacy of others.
The firefighter claimed that he thought he was only communicating with his followers and that his privacy settings prevented the public from accessing the content. He found out this was not the case when three of his tweets were featured in an article published by the National Post. The firefighter clearly identified himself as a Toronto firefighter on his Twitter account.
The Ontario Labour Board stated:
“… but when engaging in social media use, it is my view that the user must accept responsibility when the content of his or her communications is disseminated in exactly the manner promoted by the social media provider. This is what social media is intended to do. Once we use these devices, once we load that gun, it is potentially dangerous.”
The Labour Board found that there was a social media policy in place; however, the firefighter had not been adequately trained on it.
The mass broadcasting abilities of social media can be dangerous to those who are not cognizant of the consequences that their “private posts” may have on their public life or employment.
The evidence presented before the Labour Board established that there was actual, as well as potential, damage to the reputation of the employer in the circumstances.
The termination was upheld on the basis that the remarks illustrated that the firefighter could no longer perform his employment duties to satisfaction because his position required him to bring honour to his uniform. The Labour Board stated:
“I have to wonder if a deaf person, a woman in labour, a homeless person, a member of a visible minority group, apprised of his comments, would welcome this man into their home.”
Social media has become the primary mode of communication and dissemination of information on the Internet. The mass broadcasting abilities of social media can be dangerous to those who are not cognizant of the consequences that their “private posts” may have on their public life or employment. Privacy settings are a helpful aid but are not a guarantee. Individuals must be properly informed of their rights and obligations and of their employers’ rights and obligations with respect to the use of social media both in their private lives and their lives as employees.
Content posted on social media may be viewed as a representation of not only yourself, but also a representation of those associated with you in your personal and professional life. A good rule of thumb for those concerned about the implications that a private post may have on their professional life: Do not post anything on your personal social media page that you would not post on a bulletin board in your workplace.
Keith Senden is an associate at Fillmore Riley LLP who practises primarily in the areas of corporate and commercial law as well as wills and estates law. You may reach him at 204-957 8355 or ksenden@fillmoreriley.com. 
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