Labour and Employment Law Blog

As the May long weekend approaches, it may be a good time for employers to consider reviewing or implementing social media policies. With the accessibility of social media, employees should be aware of corporate codes of conduct that apply to social media use.

A social media policy (also called a social networking policy) is a corporate code of conduct that provides guidelines for employees posting content on the Internet both during and after work hours. Social media includes platforms such as Facebook, Twitter, Instagram, Reddit, blogs, etc. 

The use of social media in general, and particularly in the workplace, has exploded in recent years. Most companies have a Facebook page, Twitter handle, or Instagram account to engage with clients and customers. Despite this proliferation, employers have been somewhat slow in developing policies governing the appropriate conduct of employees on social networking sites.  Important questions we often get from our employer clients include: What should be included in a social media policy? Will I be hampering employee rights to choose the content they post to their social networks? Should I ban employees from accessing their social media sites at work completely?

Confidentiality, privacy policies and corporate codes of conduct may capture the necessary elements of a social media policy. Those policies require employees to conduct themselves professionally when representing the company and to keep corporate information confidential. However, employees may not connect the dots from their duty of loyalty, fidelity and confidentiality under these policies back to their latest wall post, status, or tweet.  A social media policy will make that connection clear to employees. For this reason, a social media policy is becoming as important as policies around discrimination, paid leave, vacation, and benefits.

Five key reasons for having a social media policy are:

1. To protect the employer’s reputation – The use of social media by employees, either in a representative or a personal capacity, has the potential of affecting an employer’s reputation and business interests quickly, and often before the employer is aware.
2. To control your online and social media presence – Employers don’t want to spend funds ensuring their marketing teams craft a specific online presence, only to have that overtaken by Facebook or Reddit posts by their employees which convey a different message.
3. To ensure productivity in the workplace – Employees using social media during work hours may reduce productivity or at least waste valuable company time.
4. To establish just cause for breach of a social media policy – Although employee conduct that justifies discipline or discharge while at work tends to primarily involve the use of Internet, email and cellphones, off-duty conduct tends to involve social media posts. One of the most cited factors by decisions makers in employment cases involving discipline or dismissal for social media use is the existence of a social media policy, the employees’ awareness of it, and the employer’s efforts to enforce it.
5. Protect the privacy of individuals and confidential information about the business and customers - All too often, employees divulge sensitive information about clients or other individuals in the workplace. It can happen intentionally as well as unintentionally (captured in the background of a photo or video taken in the workplace). While these should be covered by privacy and confidentiality policies, it is good practice to be clear about what employees are restricted from revealing about the workplace.

In order to justify discipline or discharge for off-duty conduct including social medial activity, an employer must be able to prove:

• Employee misconduct; and
• A nexus between the misconduct and the employer or its reputation, other employees, or the employee’s ability to discharge his or her duties.

Employees should have a clear understanding of what is and is not appropriate social media use. Employees should be aware that they can be held responsible for the things they publish online, even if they are at home when they do so and even if they are posting to their own social media accounts. The courts and arbitrators have repeatedly held that social media posts, whether through blogs, Facebook, tweets, or otherwise, are all sufficiently public such that employees do not have a reasonable expectation of privacy.

Implementing social media policies provides an opportunity to educate employees about appropriate conduct. Social media policies deal with appropriate employee conduct and communications, and discuss issues like confidentiality. Such policies reinforce the importance of the employer’s reputation, and creates an opportunity for dialogue with your employees about this important issue.

Social media policies can also be a way to convey and maintain corporate culture. These policies can be a great place to reaffirm what you want your company culture to be, while conveying your stance on this important topic.

For more information, please contact Ritu Mahil at rmahil@lawsonlundell.com or Deborah Cushing at dcushing@lawsonlundell.com or any member of our Labour, Employment & Human Rights Group.