Social Media Posts and Employment: A perilous playground.

• Date: 01 March 2021
• Author: Skeith, Andrew

An employee's social media or Internet activity can have unexpected impacts on their employer. And their job.

Social media, and the Internet generally, has become the preferred pastime of our age. Social media may have begun its life as a glorified digital bulletin board. But it has blossomed into a place where individuals loudly advocate for political, societal and social justice issues on a whim.

Unfortunately, due to the pervasive nature of social media, some people think the Internet is a playground without consequences. And they think they are free to post whatever they wish, however they wish. This devil-may-care attitude can have unforeseen consequences for the employers of these individuals. Employers can face unexpected losses or liabilities because of problematic statements made by their employees on social media.

Off-Duty Conduct

When can an employer discipline or dismiss an employee based on their social media or other Internet activity?

If the social media or Internet activity takes place outside the workplace or is not work-related, then an employer must show:

* the activity rises to the level of misconduct AND

* the misconduct is harmful or likely to be harmful to the employer's interests or reputation.

If an employee is part of a union, arbitrators look at five factors to decide whether their off-duty misconduct is harmful enough to the employer's interests to justify discipline or termination:

1. The conduct of the employee (grievor) harms the company's reputation or product.

2. The grievor's behaviour leaves them unable to perform their duties well.

3. Other employees refuse, are reluctant or are unable to work with the grievor because of the grievor's behaviour.

4. The grievor's conduct affects the general...