Fired over WhatsApp? Social media policies in the ‘switched on’ age

'Good morning. You are fired. Return my house keys and the card'

Fired over WhatsApp? Social media policies in the ‘switched on’ age

When was the last time you checked your Facebook, posted on LinkedIn or edited a Snapchat? Where once social media was a “young person’s game”, it’s now very much multi-generational. We’re online all the time, constantly wired-in to our profiles and accounts – both personally and professionally.

For employers, this has created a monster. How do you police employees’ actions? Do we even have a right to tell people what to do in their own time? Most importantly, how can HR professionals work with their teams to both protect the organization’s values and brand, and avoid any costly, not to mention embarrassing, lawsuits?

Read more: 'Work-life balance is king': Is flexibility underrated in the C-suite?

“The lines between personal and professional lives blurred long ago, but you can be preventive with a clear employee code of conduct,” James Blackwell, CEO of Ronald James, tells HRD. “Employers and employees must be super careful that they don’t jeopardise the company’s image online and show the business or institution in a bad light. You’re expected to hold yourself in a respectable way when in employment - whether you realise it or not. This can be imposed with employment agreements and by providing online training.”

Identifying risks and mitigating fallout

Earlier this year, John Demsey, a high-flying executive with Estee Lauder, was placed on leave after a he posted a meme to his public Instagram account seemingly mocking COVID and containing a racial slur. Even though Demsey apologized, the organization stood firm. An Estee Lauder spokeswoman insisted that Demsey wasn’t fired but rather was “told he had to leave the company” and agreed to retire.

It's a hard lesson to learn – and one that could easily wreak reputational damage on an unsuspecting employer. And, setting the brand issue aside, “discriminatory” posts could lead to yet more legal issues.

“You should never post messages or language that’s discriminatory or could be considered harassment,” Mikaela Kiner, founder and CEO of Reverb, tells HRD. “That includes, but is not limited to, language, images and messages that are racist, sexist, ableist or would be offensive to the average person. You will very likely offend your colleagues, managers and leadership while casting yourself and your company in a negative light.”

Building a social media policy

When it comes to building a social media policy, the key is transparency and clarity. Employers in Canada need to detail who is and who isn’t authorized to speak for the company. Set guidelines not only around your professional company accounts but also employee’s private channels. Employers may also chose to detail how much time employees spend on social media in their working day, as well as explaining the repercussions of violating the rules.

“By providing a list of specific examples of unacceptable behavior, statements, and activities, an employee can more easily understand the type of activity prohibited under the policy,” say Social media and law experts Heather Melick and Ethan Wall. “There is no “one size fits all” social media policy. You should tailor your policy to the specific needs of your company. For example, if your company has trade secrets then ensure that your policy prohibits employees from posting that type of sensitive information on any social media platform.”

Legal ramifications for Canadian employers

The recent Working for Workers Act came into fruition in Ontario, bringing with it strict regulations around electronic monitoring in remote work. Employers with 25 workers or more must have an official electronic monitoring policy in place – which may extend to social media use. Employers that don’t have a policy in place, or opt to “snoop” on employees without their consent, could find themselves liable for both non-compliance and human rights breaches.

But can employers actually fire an employee over a private social media post? Or would that lead to legal issues?

“In terms of justifying a dismissal for cause, there are a variety of arbitration cases that deal with social media posts,” says Cameron R. Wardell, associate at Mathews, Dinsdale & Clark LLP. “Outside of the unionized environment, the Courts have continued to apply a more general analysis known as the proportionate approach. If you’re looking to justify dismissal for cause in BC, you have to show both that the employee engaged in misconduct, and that dismissal was the appropriate level of discipline in the context of all of the circumstances.”

Read more: Work-life balance at risk: One in five workers did not take annual leave in 2021

Putting HR at the centre of your policies

The risks of unfair dismissal always loom large for employers in Canada, which is why it’s advisable to consult an employment lawyer before making any big decisions. But HR leaders have a place in this too – especially where communication is concerned. As Blackwell tells HRD, it’s on the HR department to understand the risks of social media use, and take informed steps to improve internal practices.

“It’s the fundamental mission of HR professional to assess the workplace environment, and talent profiles to insure this does not happen,” says Blackwell. “In 2016, a domestic worker was fired with a WhatsApp message. The Superior Labour Court considered a resignation message sent by WhatsApp to be abusive. The employee received the notification “Good morning. You are fired. Return my house keys and the card. You will be contacted soon to sign documents,” and decided to file a lawsuit in court. The court upheld the conviction for moral damages. As a result, she received compensation of three salaries in 2018. A revolution is on the way, and we must be quick in adapting our companies to the new realities, always creating a safe environment for everyone involved.”

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