Social media

A new workplace policy to enforce

Joe Figliomeni

Social media has had a profound impact on our lives and that impact has extended beyond our personal lives and into the workplace. Just a few years ago, social media was considered a leisure activity and distraction to be avoided at work.

Today, organizations use social media to further their strategic objectives and gain a competitive advantage — they advertise job openings and scout new recruits on LinkedIn, rely on Facebook forums to engage and communicate with their customers, and update Instagram to promote new products and flash sales. The prevalence of social media in our lives and in the workplace means that it makes sense for organizations to develop a social media policy to mitigate the potential risks associated with social media’s power to facilitate the quick and irretrievable exchange of messages, information, audio and video.

Many employees don’t see a connection between their social media presence and their jobs. This is particularly true when employees are online outside of work hours. For most, the perception is that if they are “off the clock,” they ought to be entitled to do what they want, say what they want and share what they want, without any regard for what their employer might think. To some extent that’s true; generally speaking, 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.

Some recent Canadian case law highlights the point that, where an employee’s social media activity negatively impacts the employer’s business in a real and substantial way, the employer is usually justified in administering some form of discipline, which can be anything from a written warning to termination of employment. Discipline has been found to have been warranted in circumstances where one employee posted offensive comments on a social media site, which upset his colleagues and led to disruptions in the workplace and conflict among the workforce. In another case, where Facebook comments made by an employee disparaged the company’s main customer, the company’s decision to terminate the offending employee for just cause was approved and upheld. Of course, the level of discipline imposed ultimately depends on the severity of the employee’s conduct and on the circumstances of each case.

There is also an emerging number of cases where employees are demanding that their employers implement measures to protect their individual privacy and reputational concerns. For instance, employees are entitled not to be harassed by their employer’s customers and employers should be implementing measures to protect their employees from being identified publicly in disparaging remarks or reviews posted to the organization’s social media sites and such public forums as Google.

In light of these and other potential risks, it is imperative that organizations have a clear and well-written policy to mitigate the potential damage and liability associated with the use of social media. A well drafted social media policy will:
• Inform employees about the organization’s expectations with respect to using social media accounts, both during and after work hours
• Make it clear that the prohibition against bullying and harassment in the workplace is equally applicable outside of the workplace and that cyberbullying and comments that are discriminatory will not be tolerated
• Warn employees to use caution and good judgment as their personal online presence may have implications for the organization’s public reputation
• Reinforce the organization’s confidentiality and privacy obligations with a reminder that all employees have a duty to protect the organization’s confidential information, which includes trade secrets, supplier, and customer information
• Identify a person within the organization that all employees can contact and report to if they have any questions or concerns related to social media and the company’s social media policy.

Like any workplace policy, a social media policy must be made known to employees and be consistently enforced. The policy must also be enforced in a consistent and timely manner, with appropriate discipline imposed whenever the policy is breached.

Joe Figliomeni is a commercial litigation lawyer at Lawrences Lawyers, Brampton, Ont.

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