Not So Tweet After All: Social Media's Impact on Workplace Firing
By Daniel Kosir | June 1, 2011
It’s common knowledge that social media can be a valuable business tool.
Less commonly discussed is the fact that if used improperly, it can do more harm than good.
In light of Damian Goddard's recent dismissal from Rogers Sportsnet following his tweets about same-sex marriage, issues surrounding social media use and the workplace have once again become a hot topic.
To get some insight into what small businesses need to know about the legal implications of firing someone based on what has been said on a social media website, we talked with Daniel A. Lublin, a workplace law expert practicing across the country.
Lublin, who works on behalf of both employers and employees, has extensive experience dealing with the tenuous relationship between social media and employment. He provided CanadaOne.com with some valuable tips and information regarding the law, employment, and social media.
When words strike deep: employee termination
When an employee says something totally inappropriate on a social media forum, can the employer safely fire that person?
The answer, Lublin says, depends on several things, starting with what the employer offers the employee at termination.
"The first thing that any employer needs to know is that you don't need a good reason to terminate an employee... you can terminate anyone for any reason as long as you provide them with enough severance or notice," says Lublin.
Where companies run into problems, Lublin says, is when the reason for termination is due to misconduct they find so problematic that they dismiss the employee without providing proper notice and/or termination pay.
Whenever an employee is fired without notices or termination pay, there is a real possibility that the employee may bring a claim of wrongful dismissal against the employer.
The casual nature of social media creates complications
Lublin said that though social media is a relatively new issue that courts have been asked to grapple with, the laws relating to misconduct are not.
"Courts have grappled with, for many years, termination for email or Internet misuse," says Lublin. "Ultimately, the same framework still applies. Nothing's really changed in respect to the law. The game is still the same, and the results are still the same."
What does seem to be different with social media is the casual nature people treat it with.
Much of the problem, according to Lublin, is that employees often use social media very casually, not realizing that what they say can come back to haunt them.
"If you damage your employer's reputation, and you do so outside of business hours, the employer's reputation is damaged notwithstanding the fact that what you've done didn't happen from your desk: it happened from home," says Lublin.
"It's not strictly limited to what employees are doing from work or whether or not they're using their employers resources to do it," he added.
What it comes down to, says Lublin, is the exercise of more caution and common sense on the part of employees to avoid these incidences.
Legal safeguards for small businesses
As a small business owner, there are a number of measures that can be taken to help avoid legal conflicts surrounding social media sites.
"You absolutely have to have an Internet misuse policy," says Lublin, "and now you have to extend that internet misuse policy to include social media."
Lublin stresses that it is essential to have a formally written social media policy that is specifically brought to the employee's attention. For new hires, whatever social media policy you have implemented should be included in the employment contract.
"When someone starts working, reference the fact that there is a social media policy, the breach of which can constitute cause for dismissal, and then enclose a copy of that policy within your hiring material," Lublin advises.
"That's how the employer can bulletproof itself from liability; because what the courts ultimately look at is what the reasonable expectations of the parties were when they entered into the employment relationship."
Being strict and consistent in policy enforcement is also important. Having rules in place and making sure they are adhered to can protect you from issues that arise with social media use in your business.
"It's pretty hard to lose the game when you make the rules," say Lublin.
Is a social media policy really that important?
Every once in a while, cases like Damian Goddard's make the news. But according to Lublin, they are much more common than we might expect.
"Most of the cases you see about a termination for social media misuse don't make it to the news... it happens more often than you think."
Lublin says that his firm has handled many cases that have not reached the media, some because they settle and others because people do not pursue action.
Nevertheless, with social media use accelerating, taking measures to avoid such incidences can save you a headache or two.
There are numerous resources available that can help you prepare. Lublin's law firm, for one, runs a law blog that provides general advice on employment law and touches on social media use.
He also writes a weekly national workplace law column for Metro News that is available in print in Toronto, Vancouver, Calgary, Edmonton, Ottawa and Halifax and online, which often covers issues of social media in the workplace.