Yes, you can be fired for your social media posts (even the personal ones)
November 13, 2023
Current global events have sparked a series of social media comments by public and private figures. Weekly news stories speak of organizations denouncing a representative or employee’s social media posts which do not align with the organization’s values; most recently those seen as sanctioning or promoting violence, antisemitism or Islamophobia.
Among other headlines, we’ve seen union presidents, university professors, political staffers and a host of employees criticized, resign or face calls for their resignation over their social media activity, while some organizations have opted to suspend or dismiss employees for social media posts. And employees take note, a December 2022 poll of Canadian employers found 86% would fire an employee for inappropriate social media posts.
This raises the question of an employer’s right to address an employee’s social media activity, including when it takes place off duty or on personal devices or personal social media accounts. And for that matter, what can an employer do to respond to an employee’s off-duty conduct in general?
Employers can discipline and fire employees for social media activity
The law establishes an employer’s right to discipline or dismiss employees for offside social media posts, including those made on personal social media accounts. When considering if discipline or dismissal is warranted and justified in situations like these or when conduct occurs off-duty, here are some steps to follow and questions to ask:
- Investigate: Before deciding to discipline or end the employment relationship, it’s essential to investigate the incident to ensure any decision is fair and reasonable and will withstand scrutiny. This includes providing the employee a meaningful opportunity to respond to and explain their behaviour. Even if some behaviour seems obvious on its face, the employee may be able to offer an innocent explanation.
- Ask the right questions: An employer needs to consider how the employee’s conduct affects the organization by asking these four questions:
- Does the conduct genuinely harm the organization’s reputation or product, in a way that is real and not merely speculative?
- Does it leave the employee unable to satisfactorily perform their duties?
- Does it reasonably lead other employees to not want to work with the person?
- Does the conduct make it difficult for the organization to properly manage and direct its work and workforce?
Establish expectations with a good social media policy
Where the conduct involves social media posts, having a social media policy sets expectations and grounds any corrective action. Some hallmarks of a good social media policy include guidelines about:
- Public and private use: address employees’ public and private social media use and the ways it can impact the organization, including making clear that posts from personal accounts are not immune from employer purview or corrective action.
- Proprietary information: preclude posts that include proprietary information, trade secrets or other confidential information.
- Brand and values: ensure posts reflect the organization’s branding and values.
- Business interests: posts should be mindful of and safeguard the organization’s core interests and objectives.
- Etiquette: offer guidance on responding to public or client comments or questions in terms of content and professional and respectful tone.
- The competition: avoid negative comments that take aim at competitors.
- Check the facts: keep posts factual and free of inflammatory content.
- Follow the law: abide by the law and any industry regulatory requirements to avoid legal liability and ensure employees understand posts should not include things like illegal or offensive images or statements that could be viewed as hate speech, derogatory, discrimination or defamation.
- Personal disclaimers: personal disclaimers that opinions are an employee’s and not the organization’s do not preclude organizational harm or liability.
- Security: require that accounts have secure passwords and updated software and security features, and outline how employees can identify social media risks and attacks and the protocol to follow.
- Give credit: cite sources of information and images to give credit where it’s due.
- Privacy and ownership: speak to privacy limits when using organization systems or devices, or postings for which others could link the employee to the organization.
- Consequences: spell out the repercussions for violating the policy.
Social media has remarkable benefits to organizations provided it’s used responsibly in alignment with the organization’s values and objectives. Like any workplace rule, it’s essential to establish expectations so employees understand the markers of acceptable versus unacceptable conduct and ground corrective measures for straying beyond the bounds of the policy.