Employers must have clear policies on employee social media use: Mathews, Dinsdale & Clark lawyer

Employers need to have clear policies on social media and how it relates to the workplace, says Wilson Chan, employment law lawyer at Mathews, Dinsdale & Clark LLP Calgary.

“My number one tip is to have a policy that sets out expectations for both sides on how it is supposed to be used, what’s acceptable and what’s not acceptable,” says Chan, who will be speaker at Canadian Lawyer’s Employment Law Masterclass West on Nov. 1. “Part of the problem is that not a lot of workplaces have clear policies, and that’s when you can run into problems, because employees can say, ‘well you never told me.’”

Chan adds that employers “might not be able to outline every single situation, but even creating the culture of what the expectations are from a high level is important, so that you can justify any actions may take down the line.”

Such a policy benefits not only the employer but employees as well “because employees then know where the employer stands on whether or not they can post Tik Tok videos.” Regardless of a formal policy or not, Chan suggests employees make themselves aware of where their employer stands on social media practices.

“Do they care? Do they want you to keep your social media more private? The main point is that if your social media feed is public, expect that your employer could be watching.”

Chan adds that social media has become an integral part of society and potentially causes severe reputational damage to the employer’s business.

He also points out that the shift from traditional social media profiles like Facebook to content creation sites like Tik Tok and YouTube can add to the problem.

“The main difference is that a lot of employers still view social media as a platform where employees can create their profile and share their feelings with a limited subset of people,” he says. “But now, it’s really geared towards content creation with the main purpose of driving engagement, and to gather likes, shares and retweets to get as many eyeballs on the post as possible.”

Depending on the content being created, that might not necessarily be a problem for an employer, Chan says. However, if the content is potentially offensive or is problematic in some way, it can become an issue, especially if there is something that can directly connect the content creator to their employer.

“If you’re wearing a shirt with your company’s logo on it, for example, that could be a problem, as it identifies someone with their workplace in a way that may not be positive.”

However, Chan points out that the potential harm to an employer by an employee through social media can escalate with the employee’s prominence in the public eye or within the company. It doesn’t necessarily mean less prominent employees are absolved if they abuse social media. “Courts look at the totality of circumstances,” he says, noting that case law has upheld the firing or discipline of employees at all levels for their use of social media.

Chan says the right to freedom of expression is important, but that doesn’t mean an employer can’t fire or discipline an employee for expressing their views in a public forum.

“Freedom of expression that’s protected by the Charter of Rights and Freedom only protects employees from government interference,” he says.

“What a lot of employees fail to realize is that they don’t have the same types of freedoms in a workplace with regards to their work relationships. So, depending on the employer’s policy, an employee might be prohibited from actually making certain comments about, for example, their support of different social causes or political issues, especially if they are controversial. You may have to be careful about what you say publicly.”

Using social media during work time or on work equipment such as a computer or phone can also be problematic. “If you’re using a company computer, there is nothing private about that. Whether you can use the equipment for personal use should be set out in the employer’s policy guide.”

These days, especially after COVID-19, there is more “co-mingling” of home and workplace, so there needs to be caution on the part of both employers and employees. However, Chan also points out that if personal use of a company computer is allowed, employers should be careful about what information they are reviewing, primarily if it is not related to the workplace. “For example, if someone has logged into Facebook, you probably shouldn’t be looking at the employee’s private messages.”

Another issue related to social media and the workplace, Chan says, is how employers are using these platforms to vet potential employees. He points to a Harris poll that indicates 70 percent of employers who responded said they believe every company should screen candidates’ social media profiles during the hiring process. (Almost 80 percent also said they felt current employees should maintain a work-appropriate social media profile.)

“Employers are definitely doing it, probably more now than ever before,” he says, adding that there are some legal risks from a privacy or human rights perspective. One example is checking a candidate’s profile and finding out that person is pregnant and not hiring them on that basis. He says you couldn’t ask that question in an interview, and it would be against human rights codes to find another way.

Finally, Chan says an employer could have a duty to “protect” their employees from harmful social media and practices such as doxxing or swatting. (Doxxing is about releasing personal or private information on social media that may prove harmful or embarrassing. Swatting is a form of harassment in which attackers try to trick police forces into sending a heavily armed strike force to a person’s home when there is no reason other than to annoy and humiliate).

Adds Chan: “When there is harassment of an employee, whether by the public or another employee, on social media, the employer might be obligated to investigate and take appropriate steps. It’s something that employers must be cognizant, especially if it poses physical or mental health risks to employees.”