When called upon to investigate social media breaches, employers have to contend with a variety of risks including privacy and confidentiality violations, reputational issues and employee dishonesty to name a few. Being prepared and understanding how to manage social media breaches is key for today’s employer.
Personal Use of Social Media
As the boundaries between the private and the public are eclipsed by endless posting and chatting (often during work hours), employers find themselves navigating murky waters. In today’s workplace, it is expected that many employees will spend part of their working hours checking in on their virtual lives. During those frequent, quick checks, sometimes employees make poor choices and employers are left having to determine what they can do to correct the problem.
In most scenarios, employers are called upon to investigate conduct involving distasteful comments posted about the company, management or sometimes conflict between two employees who decide – in their emotional haste – to air their issues in a public setting. Some scenarios involve employees who post racist or sexually inappropriate comments on social media. A close look at the facts is always important, but what many of these scenarios have in common is that the impugned conduct usually occurs off duty or outside of working hours.
Social Media Workplace Investigations
What must employers consider? How can they best manage and/or investigate social media-related concerns?
Employers should conduct an investigation to obtain background information to assess appropriate disciplinary steps. Conducting an investigation is prudent even if the conduct did not happen at work or during business hours.
Common scenarios leading to an investigation involve employees who makes negative comments about the company or their peers, or the posting of pictures of the workplace without an employer’s consent.
A well-conducted investigation will focus on capturing all of the relevant evidence and ensuring the employee is provided with a full opportunity to respond. Once all of the relevant facts have been obtained, an employer is then equipped to determine what discipline, if any, is appropriate.
Discipline for Off-Duty Social Media Activity
The closer the connection between the social media post and the employer’s operations and/or customers, the more likely the discipline will be upheld. An employer does not have to establish that reputational harm actually occurred. Establishing a policy breach could make it easier to dismiss an employee for prohibited social media activity.
An employer can discipline or even discharge an employee if the employee’s off-duty social media presence resulted in one or more of the following:
- Harm to the reputation of the business or its product;
- An employee rendered unable to perform job duties to satisfaction;
- Other employees refusing or being reluctant to work with that person;
- A serious breach of the Criminal Code; and/or
- Disruption of the otherwise efficient management and function of the workforce.
Mitigating factors play a significant role in determining the appropriate disciplinary action. An employer will need to consider factors such as an employee’s remorse, length of service, record of behaviour, and whether the incident in question was a one-off momentary outburst.
To be prepared to deal with social media breaches, employers should discuss their plan of action with their legal, HR and communications team before such breaches occur.