Things you need to know about social media posts and employment

Social media has become a big part of most people’s daily routine, and as a result, many aspects of our lives can be found easily online.  When it comes to differentiating between our personal and professional lives, the line is sometimes hard to find.

And in an employment situation, questions can arise over what an employee does in their personal life and how that can be dealt with in the workplace.  Is there anything that an employer can do about an employee’s personal social media posts?

Employee behaviour outside the workplace

Generally, an employee can be disciplined or even dismissed for misconduct that occurs outside of the workplace.

This is not a free for all and there does need to be some link between the employee’s conduct and their employment.  For example, this can be the case where an individual is well known in a professional setting and does something that has the potential to bring their employer into disrepute by association.

So, what’s the deal with social media activity of employees?

It goes without saying that anyone using a work profile or operating a company account has to “play by the rules” around social media.  Equally, if an employee is expressly posting about work topics, in work uniform or on work premises, the employee will be open to disciplinary action if the posts are inappropriate or in breach of employer rules.

But when using a personal social media account – what then?

In short, this needs to be dealt with on a case by case basis, considering all the circumstances.  Key considerations that need to be weighed up when addressing social media posts by employees include:

• Are the social media posts clearly made by an employee? It is not sufficient for an employee to use an alternative name or image effect if it can still be traced back to them, and in turn the employer.
• What does the social media post say? This will mean looking at the specific wording but also considering whether there are other clear inferences that can be taken from the strict wording in the circumstances, given the topic or other surrounding comments.
• Who is able to see the post? Even comments made on private accounts to an employee’s friends may still be misconduct.
• Check the relevant policies. There will often be employer policies which deal with social media specifically, and these do need to be followed.  There might also be general code of conduct provisions relevant to the situation.
• Are there any other industry requirements or obligations that might apply? For example, there may be specific privacy rules at play or industry requirements around confidentiality.
• How might the content of the posts, or the action itself, fit with the employer’s values? At times, the content of posts, or even the fact of making any comment on a particular topic, will be at odds with the values or core functions of the employer.  This may be the case where an employer is performing a public function or providing services of a nature that require certain public confidence.
• Do the posts have the potential to bring the employer into disrepute? Employees should recognise that social media posts can reach people right across the world, regardless of how and where they are posted.  They can be received in many ways as well.  Whether a post has the potential to bring an employer into disrepute will depend on the wider context.
• Are the posts of a nature or content that destroys the employer’s relationship of trust and confidence with the employee?

While there is protection for free speech at an individual level, this does not enable or entitle employees to take steps or make statements that have the potential to adversely affect their employer.  When entering into an employment relationship, both parties have obligations of good faith to each other to ensure a productive working relationship.  Rude or inappropriate social media posts do not fit into that category.

For both employers and employees, it is important to understand employer policies and key values or expectations of employees.  

• For employees, always err on the side of caution. If it is that important for you to post something online, you can always read the policies and check with your employer first.
• For employers looking to avoid this situation, ensure that your policies are up to date and well communicated to your team. If faced with this situation, the best approach is always to discuss matters with your employee before taking any further action.

Remember that posts on social media can last forever, regardless of whether they are deleted and who you share them with.  Care and caution should always be exercised.

For further information or advice on matters, or to update your social media policies, contact Executive Director, Renika Siciliano, or any of our Workplace Law Team at McCaw Lewis.