By Matthew Larson and Matt Allard, Fasken

Social media has given every individual an opportunity to become an ‘influencer’. While this so-called democratization of media has benefits, it also raises questions and concerns for employers.  For instance, what steps can an employer take to control employee social media use? Can an employee be disciplined for comments made on social media outside of the workplace and not using the employer’s system and equipment?

Employee Social Media Use and Off-Duty Conduct

An employee’s social media activity may occur within the workplace (for instance, during work hours or on an organization’s official social media platform) or outside the workplace (posted on an employee’s personal time on their personal social media account). As a general rule, an employer is not entitled to regulate an employee’s personal lives (i.e. what they do outside of the workplace). There are exceptions to the general rule – such as where the employee represents themselves as an employee of the organization. In such instances, what appears to be personal conduct outside of the workplace may be treated as workplace conduct and subject to discipline. When applied to an employee’s social media use, an employer may have a right to discipline an employee for comments made on social media outside of the workplace if an employee identifies themselves as an employee of the organization (for instance by mentioning their employer in their post or by listing their employer on their social media profile).

Prior to disciplining an employee, it is essential that an employer investigate the alleged misconduct. The investigation must include affording the employee an opportunity to respond to the allegations. The requirement to investigate exists even if there appears to be no question as to what occurred. Further, it is important to consider the content of the social media post and whether it may fall within a protected category of communication (such as whistleblowing, workplace health and safety, or political speech).

The line between workplace conduct and off-duty conduct can be unclear, and each situation must be considered on its unique facts. To eliminate questions about what is and is not personal or workplace social media activity, as well as what is and is not acceptable social media activity, we recommend adopting and disseminating a social media policy which governs social media use and which provides clear guidance regarding an employee’s social media activity.

Role of a Social Media Policy

Though not itself a complete solution, having a social media policy will help to mitigate some of the risks and clarify some of the uncertainty around the dos and don’ts of social media use by employees – as well as the consequences for failing to adhere to the organization’s requirements. A social media policy and associated training may cause an employee to think twice before posting and will help to provide a clearer path to permissible action by the employer in response to inappropriate social media activity.

Contents of a Social Media Policy

A social media policy should be tailored to the needs of an organization so that it covers the use of social media at the workplace and outside of the workplace, including both business use and personal use that could impact on the organization.

At a minimum, a policy should:

• provide a broad definition of “social media” that encompasses several activities, uses and platforms to reflect the ever-changing nature of social media;
• highlight the nature of social media (including its ability to reach a broad audience quickly and the permanent nature of postings) and its potential impact on the organization;
• prohibit the disclosure of confidential or proprietary information of the organization;
• set out appropriate restrictions on use, including time, place and people – i.e. confirm that social media sites are not to be accessed during company time, or if such access is required or desired by the employer, identify those sites that can be accessed, for what purposes, during which times and for how long;
• restrict usage on behalf of the organization to certain employees who have been properly trained, including a requirement that those individuals properly identify themselves as employees when discussing matters relating to the organization’s products and services;
• employees not authorized to speak for the organization should be cautioned about communicating regarding the organization and its brand, products, services and customers, and instructed not to represent or imply that they are expressing the opinion of the organization;
• employees should be instructed not to make comments that are directly or indirectly linked to the organization and which could have a negative impact on the organization – employees should be reminded that by identifying themselves as an employee of the organization, their comments can reflect on the organization and its image;
• employees should be reminded that they owe a duty of loyalty to their employer, which includes not making any derogatory or defamatory posts about the employer, whether at work or otherwise;
• employees should be cautioned about making comments about issues in the workplace, including comments regarding co-workers and supervisors;
• outline restrictions on communications about the organization and management; and
• provide a warning that a violation or failure to comply with the policy may result in discipline, up to and including termination of employment, as well as the types of breaches, if any, that may result in automatic termination of employment.

Conclusion

A social media policy should form part of each employee’s terms of employment that employees should receive at the time of their hire. A policy should not operate in isolation, rather, it should supplement the organization’s other policies and codes of conduct, including those relating to unlawful discrimination and harassment, and employee use of electronic devices and systems. An employer should also ensure that employees receive workplace training and education regarding the policy. Finally, the policy should be revisited and updated periodically, as appropriate. Having a social media policy, together with proper employee training, will help to address the risks associated with social media use by employees.

Matthew Larsen is a partner, and Richard Savage is an associate in the Labour, Employment and Human Rights practice group at the law firm Fasken. Fasken is one of Canada’s leading business law firms, with more than 700 lawyers, spread across 7 offices in Canada and 3 offices around the globe. More information can be found at www.fasken.com.

This column is intended to convey brief, timely, but only general information and does not constitute legal advice. Readers are encouraged to speak with legal counsel to understand how the general issues noted above apply to their particular circumstances.