Can You Be Disciplined By Your Employer For Your Social Media Comments?

by

The social media world has become more expansive, and more a part of our everyday routine, so it should be no wonder that it has seeped into our working life as well.

Social media can be a great platform for self or company promotion (think how vast your reach is on LinkedIn, Twitter, Facebook), but at the same time, it can spell demotions, suspensions and terminations.

A perusal of the news is a testament of the career-damaging potential of social media.

Real world examples

Ontario Hockey League

Take for example, Joe Monette, an Ontario Hockey League referee, who was recently suspended for his online posts.

After officiating a game in Sault Ste Marie, Mr. Monette took to Twitter and tweeted the following: “Soo Saint Mari, two words, Slim Pickens. #noteeth #hicktown #allfaties.”

“Employers can take the position that an employee’s offsite and off-duty conduct online will constitute employment related misconduct.”

Not surprisingly, the residents of Sault Ste Marie did not appreciate the comment, and uproar quickly ensued.

In an attempt to quell the upset caused by his tweet, Mr. Monette subsequently tweeted: “My tweet last night was not meant to be offensive and was meant as a joke between myself and a buddy of mine that lives in the Soo. I apologize if I offended anybody.”

The OHL was not satisfied with Mr. Monette’s blanket apology, and suspended him for the rest of the season and playoffs. Mr. Monette’s suspension is the most recent in a series of disciplinary actions taken against employees for their social media posts.

Mr. Big & Tall Menswear

Following the death of Amanda Todd, a 15-year-old British Columbia teen who took her own life after years of bullying, a Facebook memorial wall was created in her honour. Justin Hutchings of London, Ontario, posted a profane comment to that memorial wall, which suggested that he was glad the teen had taken her life.

“An ill-advised social media post may cost you your job regardless of whether or not it represents ‘just cause’.”

Mr. Hutchings’ employer, Mr. Big & Tall Menswear was readily identifiable on his Facebook account. Upon learning of the posting, the company immediately terminated Mr. Hutchings’ employment. Kamy Scarlett, Senior Vice-President of Store Operations and Corporate HR with the employer, commented that the termination was based on their “zero tolerance for the mistreatment of others no matter what form it takes.”

Kent Police

Just outside of another city of London (this time in England), a teen named Paris Brown, who had recently been appointed the first youth police and crime commissioner for Kent, faced similar outrage when her tweets were published in the local newspaper. In that regard, Ms. Brown’s tweets bragged about her drinking and drug use; criticized the local pizzeria employees for not speaking “proper English”; and included various racist and homophobic comments.

While members of the British Parliament called for Ms. Brown’s resignation, Ms. Brown defended herself by stating that the tweets were taken out of context and that she was “wildly exaggerating” on Twitter. Despite Kent Police and Crime Commissioner Ann Barnes’ supportive statement that Ms. Brown’s tweets were not unlike the posts of many other teenagers on social media, Ms. Brown ultimately resigned.

These recent examples seem to contradict the conventional wisdom that what employees do on their own time is their own business.

Employment-related misconduct

In fact, what has emerged from recent cases is that employers can take the position that an employee’s offsite and off-duty conduct online will constitute employment-related misconduct if:

  • the employee’s conduct harms the employer’s reputation;
  • the employee’s conduct makes the employee unable to perform his/her duties satisfactorily;
  • the employee’s conduct leads to refusal, reluctance or inability of the other employees to work with him/her (think blogs/posts criticizing coworkers!); or
  • the employee’s conduct makes it difficult for the employer to properly carry out its function of managing its business and efficiently directing its workforce.

Regardless of whether or not an employee’s online comments/conduct rises to the level of “just cause” for termination without notice and severance, it remains an employer’s prerogative to proceed with a “not for cause” dismissal, and provide appropriate termination arrangements.

In other words, an ill-advised social media post may cost you your job regardless of whether or not it represents “just cause.”

Disclaimer: This article is for general discussion purposes only and should not be regarded as legal advice.

Share
About the author

Parisa Nikfarjam is an employment lawyer with Rubin Thomlinson LLP. She supports both employee and employer clients with legal counsel in all areas of employment law and workplace human rights. Parisa is a recent graduate of Osgoode Hall Law School, where she earned her Juris Doctor degree. Parisa writes numerous articles on employment law topics for a variety of publications including HR Connected and Lexology, and enjoys speaking to human resources professionals, educators, business owners, and recent graduates about workplace law issues.