The appeal (and risk) of social media is the speed of communication and the ease of wide-spread distribution by recipients. We have moved well past Andy Warhol’s 15 minutes of fame to an era of 15 seconds of fame. The pace at which a flippant remark or crass conduct can be recorded, broadcast, go viral, then be analyzed, blogged about and rehashed seems to be increasing exponentially. The risk to employees who are unfortunate enough to be identified or caught up in a social media frenzy appears to be on a similar upward trajectory.
The latest example of the race from TV sensation to unemployed was the recent dismissal of a Hydro One employee who mounted a crass and objectionable on-camera defence of a fellow miscreant yelling vulgarities at a reporter. The incident happened during coverage of a TFC soccer game on a Sunday. By Monday, footage of the incident had gone viral. After the man involved was identified, Hydro One confirmed on Tuesday that his employment had been terminated due to breach of its Code of Conduct.
This wasn’t an isolated incident. A printing firm employee was recently suspended from his employment after heckling a comic at an industry awards banquet. A pharmacy technician found herself without a job after negative Facebook posts about her employers came to light. Another employee was suspended from his job as a pruner with the City of Montreal after he was recorded apparently revving his chainsaw while approaching a vehicle in a road rage episode. Last year, Donald Sterling managed to get himself banned from the NBA for life after a tape of his racist remarks hit cyberspace. Jian Ghomeshi was dismissed from the CBC amidst publicized allegations of sexual assault, including accounts from his own Facebook and Twitter profiles. A Subway employee was fired after she sent a celebratory tweet regarding the killing of two police officers.
As these episodes demonstrate, social media has changed the landscape dramatically when it comes to employee misconduct, even for people who weren’t famous in the first place. With cell phone cameras, YouTube, Twitter, and Facebook always at the ready, the likelihood that employers will find out about their employees’ misdeeds – sometimes from those employees’ own social media profiles – has swiftly increased. And when the general public gets hold of a story, it’s virtually guaranteed (pun intended). In short, anonymity is largely a thing of the past.
Employers who learn about employees’ off-duty conduct via social media or the evening news should nonetheless proceed carefully. Just because an employee is being raked over the cyber-coals doesn’t automatically lead to the right to dismiss for cause. Employers are best to consider in advance how they might respond when misconduct on, or publicized by, social media comes to light.
A good plan starts with a clear communication of reasonable policies regarding employee conduct. If you don’t have a social media or off-duty conduct policy, reconsider. Also consider providing training on topics such as harassment and use of social media. Be explicit regarding the consequences of a breach, and apply policies consistently and fairly. If a code of conduct is properly incorporated into the employment contract, it may be possible to discipline or terminate an employee for breaching the policy.
In the event of misconduct, even when the court of public opinion is calling for termination, avoid knee-jerk reactions, which will increase potential liability for wrongful dismissal, defamation and other potential claims. Investigate incidents thoroughly, with an open mind, and ensure that the accused gets a proper opportunity to fully explain his or her side of the story. Any discipline should be proportionate to the offence, and reasons for the discipline must be clearly communicated. Taking hasty action may end up necessitating an awkward apology (recently, a school board retracted its call for a bus driver to be fired after a new video came to light which showed the driver being assaulted by a student) or triggering more serious legal consequences. And as we’ve discussed previously, lack of warnings about poor behaviour may be fatal to an employer’s case for cause.
Finally, although incidents of public misconduct – or private misconduct gone viral – may provide just cause for termination of employment, there is always risk. Courts will consider various factors in assessing the employer’s decision, such as whether the conduct:
- will affect the employer’s reputation or cause it public embarrassment;
- is related to the position held by the employee;
- suggests that there are legitimate on-the-job safety concerns;
- creates a conflict of interest with the employer’s work; or
- makes other employees unwilling to work with the employee.
If an employee’s position is not one which affects the employer’s reputation, or if the public isn’t aware of where the employee works, the fact that an employee has behaved badly in public may not suffice to establish cause for termination.
Even if the standard of just cause is not met by the inappropriate behaviour of the employee, employers can always consider whether to end the employment without cause. For non-union employees, the employment relationship may be terminated without cause (provided the termination is not connected to a protected ground under human rights legislation, such as age or religion) by providing appropriate notice or pay in lieu of notice, depending on the terms of employment.
Given the increase in use of social media, employers can expect to have to deal with public instances of off-duty misconduct and should prepare to deal with such cases quickly and fairly. Clear and relevant policies and enforceable termination provisions in a contract of employment are the best ways for an employer to combat employee misconduct in the public eye.