Employment lawyer Lorenzo Lisi weighs in on importance of social media policies in digital
In today’s digital age, private posts are no longer private. In fact, a misjudged tweet or a taboo Facebook share can have a way to come back and bite you. And for employers, they’re causing major concerns – both from a branding and a legal perspective.
Late last year, media reports claims several journalists were allegedly sacked from their posts after supposedly expressing support for Palestine in the midst of the violence in the Middle East.
But how far can an employer police private social media posts? And should HR leaders have more control over what their people are posting – especially if it impacts the company’s reputation?
Speaking to HRD, Lorenzo Lisi, partner at Aird & Berlis, emphasizes the critical importance of understanding the legal parameters surrounding such situations to mitigate potential risks and uphold the reputation of the employer.
Lisi explains that while employers generally cannot regulate employees' off-duty conduct, the conduct of an employee can in fact be the subject of discipline and perhaps even termination where that conduct can directly impact the workplace, or undermine the reputation or brand of the employer.
"The rules with respect to off duty conduct still apply," he explains. "Generally, employers, in terms of alleging cause, can't regulate what employees do off duty in their own time. However, courts and arbitrators have found that there is an exception where off-duty conduct has a “justifiable connection” to the employer or the nature of the employment.”
Managing off-duty conduct can be tricky, Lisi adds.
“But If it harms the employer’s reputation or brand/product; renders the employee unable to perform their duties, or creates a situation where the workplace becomes toxic from the conduct, there may be grounds for discipline and possibly discharge.” Lisi told HRD.
“You might have an employee posting something online, which might be their own personal opinion, but creates a real issue in the workplace and makes it difficult for them to work with others due to that comment.”
This is where health and safety concerns come in. If an employee finds a social media post from their colleague and subsequently feels ‘unsafe’ working with them again, the employer may have a duty to act.
“If an employee says, ‘I don't feel safe working beside this person’, then the employer has an obligation under health and safety legislation to ensure that the workplace is safe,” says Lisi. “That would include an investigation into whether or not there are any issues that would cause the person to reasonably feel that their safety might be compromised. Have there been physical threats? Or has it just been comment itself that says, ‘I'm representing one side or the other’?
“The process here is no different than any investigation into workplace conduct, though the timelines may be short. An employer has to review and investigate, even if the result isn’t discipline or termination. The obligation is to investigate and address the conduct at issue.”
And while they say hindsight is a wonderful thing, in the digital age, it’s simply not an excuse, especially where social media policies are concerned. As Lisi tells HRD, there’s really no excuse in 2024 not to have a social media policy – or to enforce it.
“Look at your policies,” he says. “Employers are not only allowed but are obligated to have policies in place to deal with these very kind of situations. Those policies have to be clear, proportionate and enforced consistently. Employers should be guided by their policies, and instigate an investigation where required. It’s important that the process is respected.”
He further advises employers to ascertain the nature of the social media post and its accessibility.
"The investigation should seek to find out how the comment came to the attention of others, or to the general public. For example, there may be a Facebook or Instagram post which is open to the general public. That kind of post is accessible to a much greater audience than a message where privacy settings are in place. It’s not by invite only, and it can cause much greater damage.”
This is a big difference, Lisi says. “Whether the post was easily accessed and public or it was a shared as part of a closed group. Make sure you’ve done your diligence. Check the content, and who it has reached.”
“Look at the nature of the comments as well,” Lisi tells HRD. “If it’s just a generic comment then that needs to be taken into consideration. However, if there is hate speech or comments that are not consistent with a harassment and discrimination free workplace, then that’s something completely different.”
Lisi adds that many employers, even if the conduct doesn’t constitute cause, will simply take the view that the individual does not belong in the workplace, and terminate on a without cause basis, since the conduct does not represent their values.
“It’s not discriminatory to terminate based in appropriate commentary. Many employers simply view the decision as a necessary business decision to uphold their values, particularly if they are public facing.”
Essentially, managing opinions and posts in a world obsessed with being ‘switched on’ is tough. As Lisi says, it’s a true balancing act for employers and HR professionals.
“A lot of employes have very diverse workforces now,” he explains. “They've got to balance this versus how hard a line they want to draw when it comes to off duty conduct. The key here is that strong policies make tough decisions easier and more palatable. Particularly given the presence of social media, and the current socio-political climate, these kinds of workplace intrusions are going to occur.
“Employers should review and update their policies on an ongoing basis. It shows a commitment to employees that certain conduct will simply not be tolerated and more importantly, that the process will be respected.”
