With the advent of social media, which has created access to information and images within seconds, the game has changed. Employee conduct while away from work may be available for all to see, hear and read about. This, in turn, creates a host of new concerns for employers on how that behaviour will reflect on the reputation of the organization.
Given the new reality, what is an employer to do when an employee engages in unbecoming off-duty conduct?
There are ways for employers to mitigate the risks involved with off-duty conduct and assist employees in understanding that their conduct has much larger ramifications than they might think.
First, employers should create policies with respect to employee use of social media, both personally and professionally, and ensure that employees are trained on these policies and understand the consequences, especially with respect to their use of Facebook, Twitter, Instagram, LinkedIn and other social media platforms.
Policies with respect to employees’ use of work-related technology and email should also be reviewed and updated if necessary. Clear guidelines, procedures and policies should be put in place with respect to appropriate workplace behaviour. Remember to reference these policies in employment agreements and make it clear that conforming with these policies is a condition of employment.
It’s important to also note that the response to a report of off-duty conduct, particularly when it is discovered via social media, should be measured. Not all conduct merits termination. Review the specific facts, the impact on the organization, and the history/employment record of the employee. Consider how a termination would impact the rest of the workforce and how much actual damage has been done to the company’s reputation. Can the conduct provide more of a teaching moment to other employees, rather than form the basis for a termination?
Finally, remember that times have changed. A younger generation of employees means that they view the use of social media very differently. Its use is a part of who they are. Overreacting by prohibiting the use of social media in order to mitigate the risk is not the answer.
Aird & Berlis LLP is a leading Canadian law firm based in Toronto, serving clients across Canada and globally. The firm’s practice encompasses all principal areas of business law.
The Aird & Berlis LLP Labour & Employment Group provides practical and cost-effective advice to employers on a broad spectrum of workplace law matters. Our breadth of expertise ranges from labour, employment and human rights to occupational health and safety. We provide employment counsel in unionized and non‐unionized environments, to employers in both the private and public sectors. Our specialized team works with employers in various industries to navigate regulations, manage risks and ensure compliance.
We are well-versed in advising on collective bargaining, union-organizing defence strategies, strikes and lock outs, grievances and terminations, union certification and investigations, employment agreements, wrongful dismissal, privacy and access to information, pension and benefits, pay equity and compensation, severance, recruitment, employment standards and insurance, workplace audits, unfair competition, fiduciary duties, enforceability of restrictive covenants, human rights complaints as well as the development, interpretation and application of forward thinking workplace policies and procedures. We also advise employers on issues arising in commercial transactions, including acquisitions, divestitures and restructurings.
Correspondingly, our lawyers regularly represent employers before various courts and tribunals, including the Ontario Labour Relations Board, the Canada Industrial Relations Board, the Ontario Workplace Safety and Insurance Board, the Ontario Workplace Safety and Insurance Appeals Tribunal, the Ontario Human Rights Commission, the Pay Equity Hearing Tribunal, the Ontario Court of Justice, and the Superior Court of Justice.