Why #Caution Should Be Trending: Employer Social Media Blunders to Avoid

We have all seen the headlines and cases reporting on employees having said or posted something on social media which is highly inappropriate resulting in discipline or termination of their employment. Take for example the recent TikTok by an HR recruiter on Twitter which has gone viral for all the wrong reasons, as these posts often do.

The now infamous HR professional posted a video under the guise of cautioning employees about what they post on social media, but proceeds to make inappropriate remarks in her own social media post. She more than proved her point that what you post online can be widely seen – and used – including by people that matter. She now finds herself under investigation by the HRPA, her professional regulator, and will likely have her own employment terminated for the very behaviour she warned of. 

However, employees are not the only ones engaging in inappropriate use of social media. Employers can very easily fall into that trap as well.  Here’s how:

Breaching Privacy by Accessing or Monitoring Employees’ Social Media Accounts

Courts and adjudicators in Canada have held that an individual does not have a powerful privacy interest in the personal content they post on social media websites because an employee has direct control over the content. Put another way, how can an employee have a serious expectation of privacy when their post, photo, video, or comment is posted to a site that can be seen by the public at large? There are no laws which prohibit an employer from looking at publicly available content posted by their employees, even on their personal social media accounts. But, this doesn’t mean that employers have free reign to monitor their employees’ social media accounts.

Some monitoring can be an invasion of privacy. Employers get in trouble when they do not take into account the accessibility of the social media content. If the content could easily be accessed by anyone who conducts an internet search, then it is probably not private. If the information can only be accessed with a password, or only seen by a private group of people, and the employee hasn’t voluntarily granted such access to the employer, the information is probably private, and an employer will not be entitled to access it.  

Further, thanks to the Working for Workers Act 2022, employers with 25 or more employees as of January 1st of any given year will be required to have a written electronic monitoring policy for all employees. For 2022, the deadline is October 22, 2022. While we do not yet have a clear definition of what electronic monitoring is, monitoring social media use may very well be included in such definition. If that is the case, the policy will have to describe how and in what circumstances employees’ social media accounts are monitored and the purpose for which the social media monitoring may be used. This still doesn’t give an employer free reign on accessing or monitoring employee social media accounts - it just means that employers are going to have to disclose that they’re doing it and they must continue to ensure it’s not an invasion of employee privacy.

Managers/Supervisors Becoming Friends or Following Co-Workers

Things get more complicated however when managers/supervisors become friends or follow subordinate employees on social media. Accessing the social media account may not be a breach of privacy because access has been granted by the employee. However, the likelihood of the lines between the work/professional life and the personal life of the employee being blurred naturally increases. So too does the risk of exposure to damages for the employer. Information that the manager/supervisor obtains from the social media account could, if misused, constitute harassment and/or discrimination in the workplace. Think, for example, of a situation where an employee discloses their struggle with a disability on a private social media account (but not to their employer) and their manager, a follower who is now aware of this, denies a promotion or a bonus or other work opportunity. This opens the door to a claim for discrimination based on such disability.

Being online friends or followers of an employee, or a member of the same online group, may also result in favouritism in the workplace, albeit unintended. It is often said that like minds think alike. But when a greater level of familiarity with a co-worker gained from an online relationship makes its way into a supervisor or manager’s workplace decision, their unconscious bias towards a friend may displace what ought to be an objective decision-making process.

Using Social Media in Screening Processes for Job Applicants

In Ontario, Section 23(2) of the Human Rights Code (the “Code”) prohibits the use of any application form or written or oral inquiry that directly or indirectly classifies an applicant as being a member of a group that is protected from discrimination[i]. 

Like the concern noted above about managers obtaining information for existing employees that could be used the wrong way, employers who vet applicants through social media could inadvertently obtain information about race, ethnicity, religion, age, etc. through pictures or posts on social media. Even if the employer doesn’t use any of that protected information to make an employment decision, the fact that a social media search was conducted where protected information was or could have been accessed gives the applicant a potential argument in a complaint to the Human Rights Tribunal that such information was used to deny them the job.

When it comes to recruiting efforts, it’s also important to remember that just because it’s posted, doesn’t mean it’s true. The internet is fraught with inaccurate and even false information. So even when there may be several posts or examples of inappropriate online behaviour or comments, employers must still be cautious with when and how it is used.

Posting Social Media Content that is not Authentic

Many employers will post content on social media to honour existing employees or to market their company as a desirable place to work and, of course, there’s nothing wrong with that…as long as the posts are not merely platitudes. Employers who post such content can expose themselves to public shaming. Fortune magazine reported that many UK based corporations marked International Women’s Day on March 8, 2022 by tweeting photographs of woman colleagues alongside positive statements that celebrated the proud and equal work they do. As they did so, a bot replied with the gender pay gap at each company in question (these figures are publicly available in the UK). Posting what you think others want to hear/see/read without ensuring it reflects the reality of the workplace is never a good idea.

So What is the Answer?

Well, banning social media use in the workplace (even by the company, for the company) is likely not the answer. Like it or not, social media is a huge part of our modern day lives and is here to stay.  As my business partner, Jennifer Heath, previously stated in her blog on workplace social media policies, “old, off-the-shelf social media policies will no longer suffice. Employers must bring open-minded and flexible approaches to social media use and reflect on how at-work practices can and should inform online expectations.”  In drafting such a policy, employers must consider not only how they want to deal with their employees’ social media presence and use, but also how the company and its managerial representatives should appropriately use social media.  Such appropriate use needs to be authentic, and mindful of privacy, discrimination, and harassment laws.

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[i] Protected Grounds under the Code are: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, record of offences, age, marital status, family status or disability.