The COVID-19 pandemic has changed life as we know it. With people spending more time at home and at their computers, the line between work and social life is blurring even more. People are posting more on online social media platforms as they try to connect with and express their frustrations to colleagues, friends and family.
Social isolation has become the new normal and it is still important to remember that the comments you post on social media, can warrant discipline, and could even get you terminated from your job. The blending of on and off duty conduct could raise some unique workplace issues.
How can social media posts warrant discipline or termination?
The law regarding an employer’s response to off duty employment conduct has evolved as social media has connected employers and employees outside of regular business hours. You never know who is watching what you post online. As such, an employee can be reprimanded for online comments posted on Twitter, Facebook, Instagram or other social media sites that are misogynistic, offensive, solicit illegal drugs or services, harass, bully or verbally attack colleagues, customers and even other people outside of the company.
Typically, to warrant discipline for actions taken outside of working hours, the conduct must do one of the following:
- detrimentally impact the employer’s legitimate business interests;
- detrimentally affect the employer’s reputation;
- cause the employee to be unable to properly discharge their employment duties;
- lead other employees to refuse to work with the employee; or
- significantly impede the employer from conducting its regular business practices.
Further, the conduct has to have a real and material connection to the workplace. If an employee engages in ‘bad’ conduct in their personal life, the conduct has to somehow damage the employer’s business.
In the context of social media posts, examples of where real and material connections have been found to exist include:
- employee’s social media posts, upsetting other employees which led to disruptions at the workplace and conflict between employees;
- employees identifying their workplace, co-workers or managers (or individual clients) in their social media posts; or
- employees making disparaging Facebook, Twitter or Instagram posts about the employer’s clients.
This emphasizes that although some conduct on its face is not desirable, it still must have sufficient connection to the employer’s business to warrant discipline or damage its reputation sufficiently.
Reputational damage is also a significant factor when assessing whether off duty conduct warrants discipline. If an employee makes public social media posts that could be linked to their employer and inflict reputational harm, depending on the severity of the conduct, that can warrant discipline.
Off duty workplace policies during the COVID-19 pandemic
Workplace policies and what they say about off duty conduct may also influence whether or not an employee’s undesirable behaviour amounts to just cause for termination. For example, accessing social media on company property like computers or cells phone while working at home may blur the line between what is done ‘on duty’ and what is done ‘off duty’.
It is important to regularly review your workplace policy with employees and outline the expectations concerning social media use. Updating that policy in light of the COVID-19 pandemic may help curb the undesirable behaviour and help provide grounds for termination should a situation arise.
Virtual workplace investigations for social media posts
Workplace investigations can be triggered when an employee makes a complaint regarding sexual harassment, workplace violence, illegal activities or discrimination at the workplace, all of which can be done on social media platforms. So how can employers conduct workplace investigations into such behaviour and discipline or terminate the employee if misconduct is found to have occurred during the COVID-19 pandemic?
With technological advancements, video communications such as ZOOM or Skype create an opportunity to allow for virtual investigations. Additionally, the investigator still has an opportunity to see the witness and make credibility assessments. The COVID-19 pandemic should not be a reason to delay these important procedures.
As numerous employees now work remotely, it would be good practice to ask those interviewed to move to different rooms in their dwellings to ensure that privacy is protected during the investigation process. Please see our article on Managing and Conducting Workplace Investigations During the COVID-19 Pandemic.
Takeaways for Employers and Employees
As an employee, you should always be mindful of what you post. Although the COIVD-19 pandemic is proving to be a stressful time for everyone, venting, expressing your views and communicating with your peers, coworkers and friends on social media platforms, things you deem as private, are no longer private for very long.
While employers cannot discipline employees in every instance where they think there may be a chance of bad publicity or a negative impact on their brand, employees must understand that their off duty conduct online may warrant discipline. Modern technology allows employers to conduct remote workplace investigations. Therefore, employees must take extra care and caution before they decide to post to social media because it could cost you your job.
Monkhouse Law is an Employment Law firm in Toronto. If you are in a difficult situation due to something you did online, we offer a free 30 minute phone consultation.