In a year like no other, there have been steady developments in the landscape of employment & labour and human rights law. Some of these developments were long anticipated, including the effect of termination on bonus compensation and the legality of mandatory arbitration clauses in the gig economy. Perhaps the most interesting cases, however, are […]read more
Disciplining Employees for Off-duty Social Media Use: When is it Appropriate?
When is it appropriate for an employer to discipline an employee for their activity on social media? This is a question that employers often struggle with, due to the fact that it raises complex and nuanced issues, such as the divide between a person’s private life and their employment responsibilities, and the extent to which an employer can restrict an employee’s right to express their personal ideas and viewpoints.
The law is well established that an employee’s off-duty conduct ought not to be of concern to the employer unless there is a real and material connection between the off-duty conduct and the workplace. This same principle has been applied by decision makers in both a unionized and non-unionized context when addressing off-duty social media use by employees.
Where an employee’s posts on social media negatively impact the employer’s business in a real and substantial way, the employer is justified in disciplining the employee. The level of discipline imposed ultimately depends on the severity of the employee’s conduct and on the circumstances of each case, having regard to any applicable mitigating factors.
Establishing a Real and Material Connection
In order to determine whether a real and material connection exists, decision makers, whether in a unionized or non-unionized context, have considered the five factors set out in Millhaven Fibres Limited v. O.C.A.W., Local 9-670 (Mattis Grievance)1:
- The conduct of the employee harms the employer’s reputation or product;
- The employee’s behaviour renders the employee unable to perform their duties satisfactorily;
- The employee’s behaviour leads to refusal, reluctance or inability of other employees to work with them;
- The employee has been guilty of a serious breach of the Criminal Code, applicable human rights legislation, etc., thus rendering the employee’s conduct injurious to the general reputation of the employer and its employees; or
- The employee’s conduct places difficulty in the way of the employer’s ability to carry out its function of efficiently managing its work and efficiently directing its work forces.
An employer disciplining an employee for their off-duty conduct – which includes off-duty social media use – needs to prove the existence of at least one of these factors to establish that there is a connection between the off-duty conduct and the workplace.
In the context of social media posts, examples of where a real and material connections have been found to exist include:
- Other employees were upset by the employee’s social media posts, which led to disruptions at the workplace and conflict between employees.2
- An employee identified their workplace, co-workers or managers (or individual clients) in their social media posts.3
- Facebook comments made by an employee disparaged the employer’s main clientele.4
The level of discipline imposed by the employer ultimately depends on the severity of the employee’s conduct, which depends on the circumstances of each case. Factors that decision makers have been taken into consideration when determining the severity of the conduct include, but are not limited to, the following:
- The nature of the comments made and whether they include hateful, threatening or racist overtones;
- The number and frequency of the comments;
- Whether the comments were deliberate or merely impulsive;
- Whether the comments were motivated by malice towards the employer or co-workers;
- The impact of the comments in the workplace generally and the specific impact on any persons to whom the posting referred;
- Whether the comments disparaged the employer, its customers, its management or employees;
- Whether the comments identified the employer and could reasonably have affected the employer’s reputation or business interests; and
- The timing of the employee’s admission to the conduct and the appropriateness and sincerity of their apology.
Mitigating factors that will be taken into consideration by decision makers include length of employment, remorse, and an otherwise clean disciplinary record.
A recent Ontario labour arbitration decision, York University Staff Association v. York University5, is an example where an employee was terminated as a result of their social media posts. In this case, the employer, York University, received a complaint that an employee’s Facebook posts were in violation of the employer’s policies on hate propaganda and racism. The employee whose Facebook posts were at issue had been employed with the employer since 1993 as a Laboratory Technologist. Upon investigating the complaint, the employer found that:
- The employee posted extensively on Facebook about various topics. While the majority of the topics did not constitute culpable misconduct, there were several topics frequently posted about by the employee that did.
- For example, the employee made frequent posts alleging that either “Jews” generally, or “Zionists” specifically, were responsible for a variety of current or historical atrocities. In doing so, the employee expressed blatantly anti-Semitic views and perpetuated racial stereotypes.
- The employee’s Facebook posts were publically available to any of Facebook’s 1.71 billion active users.
- The employee repeatedly associated his Facebook account with his employment, both in his Facebook profile and his individual Facebook posts.
In the circumstances of this case, the arbitrator found that the employee’s conduct was clearly culpable, due to the fact that some of the posts crossed the line from political expression that may be offensive to some, to anti-Semitic and racist expression. As some of the employee’s posts were racist and constituted dissemination of hate propaganda, they were in contravention of the employer’s policies. The arbitrator also found that the employee, through his Facebook profile and posts, drew a connection between his expression on Facebook and his employment, such that his posts inflicted reputational harm on the employer. Additionally, the arbitrator noted that when the employee was questioned about his conduct, he exhibited little to no insight about the problematic nature of his Facebook posts. This gave the employer reasonable grounds to believe that, having already associated his Facebook account with his employment, he would continue to promote anti-Semitic views.
While the length of the employee’s employment generally would be a substantial mitigating factor in the discipline imposed, the arbitrator found that the employee’s disciplinary record and progressive discipline imposed (which was for unrelated conduct), militated against this. As a result, the arbitrator declined to vary the employer’s decision to terminate the employee.
Lessons for Employers
Upon receiving a complaint or otherwise becoming aware of an employee’s problematic social media use while off-duty, the employer should refer to its social media policy to guide its process and procedure.
If the employer does not have a social media policy in place, it is important to consider implementing one. A well drafted social media policy is an important tool for employers to be able to effectively protect their reputation against the negative impacts that may result from an employee’s improper social media use, and can be a strong preventative measure for the following reasons:
- it sets out for employees the standard of conduct expected of them, both at work and in their off duty activities; and
- it gives clear notice to employees of the consequences that can result from a failure to adhere to the expected standard of conduct.
It is important to note that any policy being implemented by the employer must be made known to employees and be consistently enforced. This means that the employer must bring it to the attention of all employees (e.g. by giving every employee a copy of the policy and ensuring they have easy access to one if they wish to consult it going forward). The policy must also be enforced in a consistent and timely manner, with appropriate discipline imposed (where necessary and appropriate). If the employer fails to consistently enforce the policy, and then disciplines an employee based on a policy violation, a decision maker may refuse to uphold the discipline on the basis the employer “condoned” the misconduct or is “estopped” from relying on the policy.
1 Millhaven Fibres Ltd. v. O.C.A.W., Local 9-670 (Mattis Grievance), 1967 CarswellOnt 789
2 ATU, Local 508 v. Halifax (Regional Municipality) (McQuarrie), Re, 2017 CarswellNS 1024
3 Chatham-Kent (Municipality) v. CAW-Canada, Local 127, 2007 CarswellOnt 5078
4 Maxam Bulk Services v. International Union of Operating Engineers, Local 115, (2015) 257 LAC (4th) 402; Wasaya Airways LP v. ALPA, 2010 CarswellNat 6233
5 York University Staff Association v. York University, 2018 CanLII 41354