By Andrea Raso and Catherine Repel at Clark Wilson

Between the prevalence of living life publicly on social media and the rise of so-called “cancel culture”, employers are often left wondering what actions they can take regarding their employees’ online activities.  As with many matters in law, the answer is: it depends.  Employers, however, can take one concrete step to be proactive in dealing with employees’ social media activities.

Employees have a general right to engage in activities of their choosing when they are not engaging in work for their employer.  Some such activities may be protected under applicable human rights legislation if they overlap with a protected ground.  Of note is that in British Columbia, the Human Rights Code (the “Code”) lists political belief as a protected ground such that employers cannot discriminate against employees in relation to their political belief.  While political belief is not defined in the Code, it has been interpreted as including matters beyond partisan politics, but it must typically include some type of government action or matter of general public importance.  As an example, if an employer is concerned about an employee who frequently posts about support for Trump, that activity is likely protected if the employee is based in BC.

That said, employees’ rights to engage in the activities of their choosing can reach a limit as certain off-duty conduct has been found to justify termination of employment for cause and without notice where the conduct is prejudicial to the interests or reputation of the employer.  Additionally, employers have an obligation to all employees to provide a safe workplace free from bullying and harassment, which can include online activities if they are work-related.  In short, employers are not required to tolerate all off-duty conduct of their employees and, in certain circumstances, an employer may be required to step in to ensure they are meeting their obligations under applicable health and safety and/or human rights legislation.

The legal risks in any given circumstance will depend on the specific facts, but employers who are concerned about their employees’ online activities should put a social media policy in place.  The policy will not likely be able to dictate the activities the employees engage in, such as preventing them from going on social media at all. The policy may, however, prevent them from identifying themselves as an employee of the organization on social media unrelated to employment (such as LinkedIn) or may require them to ensure that any posts or their activities clearly represent their own views and not those of the employer.  Employees may be further barred from posting about internal matters relating to their employment or the employer.  At the very least, a social media policy can provide a framework for notifying employees of what conduct is and is not permitted and provide notice of consequences for breaching the policy.  While there are limits to what an employer can permissibly regulate, employers are wise to be proactive and set expectations before issues arise.

In the absence of a social media policy, or if an employee breaches the policy and an employer is considering further action, it is best to seek legal advice to understand the potential risks of the different courses of action.

About Clark Wilson

Clark Wilson is one of Western Canada’s largest law firms, providing comprehensive legal expertise across 35 distinct areas of business law and private client services. Our Employment & Labour group works exclusively with employers, providing strategic and practical guidance to organizations nationwide, helping them create high-performing teams and advocating for their interests in contentious disputes.  

Andrea Raso

Andrea Raso is a partner at Clark Wilson where she chairs the firm’s thriving Employment & Labour group and offers complementary services in Mediation & Arbitration, Privacy Law, and Indigenous Law.

Catherine Repel

Catherine Repel is a partner at Clark Wilson where she practices exclusively in the area of Employment & Labour.