Like it or not, Canadians live life online. More people – and more employees – are sharing more information, images and opinions with more people in more places using more digital platforms, all in less time than it took you to read this sentence. And social media is leading the trend:

• In 2017, Statistics Canada reported that 76% of Canadians surveyed own a smartphone, 71% own a laptop or netbook, 54% own a tablet or e-reader, 50% own a desktop computer – and 100% of Canadians under the age of 45 use the Internet every day.

• In 2018, the Canadian Internet Registration Authority (CIRA) reported that 74% of Canadians spend at least three to four hours online daily, and the third most popular online activity at 61%: engaging on social media.

• In 2018, Social Media Lab at Ryerson University reported that 94% of its online Canadian adults had at least one social media account, 84% of whom had a Facebook account and 79% of whom visit the platform daily.

The surging use of social media use creates opportunities, but also poses risks. The Canadian government has recognized and is responding to both in relation to Canadians generally, recently announcing a new Digital Media Charter and hosting the International Grand Committee on Big Data, Privacy and Democracy. Employers must also recognize the workplace risks that employee social media use creates, and respond. A well-drafted, properly implemented written social media policy is a key tool in an employer’s ability to manage and to mitigate the risks of employee social media use.

THE @ WORK SOCIAL MEDIA RISKS  

Everything a person does on social media, anytime they do it, reflects not only them as a person: it also reflects on them as an employee, on their employer and on their co-workers. The virtual distance social media offers often emboldens people to be more opinionated and argumentative online, losing sight of the audience without thinking about the impact on their employer, and the quick and easy access to social media anywhere anytime can lead to posting first, and thinking later. All that translates into very real risks for their employers. For example:

Legal liability. An employee’s social media comments can expose their employer to both direct and vicarious liability to other employees, such as for cyberbullying, harassment, discrimination and defamation.

Business reputation. An employee’s social media comments airing negative workplace comments of any kind can make – or break – a business’s reputation, a power made greater by social media’s reach and practical permanence.

Workplace productivity. An employees’ excessive use of social media while at work can be a drain on the employer’s productivity.

AN EFFECTIVE SOCIAL MEDIA POLICY

Here are three steps to an effective workplace social media policy.

Step 1: Create a distinct social media policy.

A distinct workplace “social media” policy isn’t strictly necessary before an employer can discipline or even dismiss an employee for social media misconduct, whether while on-duty or off-duty. But it sure makes managing employee social media conduct – and misconduct – easier.

Basic Benefits. A well-drafted, properly implemented written social media policy offers the employer the same benefits as does any written workplace policy. In the particular context of a social media policy:

• Employer expectations. Setting out the employer’s expectations of employee conduct is particularly important for social media use vis-à-vis the workplace because of the implications of misconduct in terms of social media’s impact, reach and permanence.
• Management guidelines. Detailing the employer’s rules around employee social media use can help the managers and supervisors on the ground understand how to identify the existence of potential social media misconduct and when and how they should take action.
• Avoid misconduct. Making employees aware that their employer has the authority to discipline them for off-duty social media conduct, that they do owe the employer obligations, and of the relevant rules around social media use might be enough to avoid, or at least reduce, the incidence of social media misconduct.

Particular purpose. A social media policy is designed for the particular purpose of conveying to employees how their online conduct reflects on the employer and establishing and communicating responsible employee social media use to protect the employer, and ideally comprehensively covers employee social media conduct. Employers often have other workplace policies that also apply to employees’ social media use, but only tangentially because they’re designed with the primary purpose of addressing other issues. Examples of policies that commonly touch on employee social media use include a mission statement or code of conduct, confidentiality, conflict of interest, anti-harassment, anti-discrimination or anti-bullying, IT security and Acceptable use policies. List these other policies in the social media policy and make sure they are all internally consistent – but create a social media policy that’s stand-alone and designed to achieve this particular purpose.

Privacy expectations. One important effect of a distinct social media policy is to help set parameters around employees’ privacy expectations in relation to their social media use. While a social media policy might not eliminate an employee’s expectation of social media privacy altogether, it can help limit it.

Step 2: Cover off these 5 key policy elements.

Ensure your workplace social media policy covers off these five key elements:

Policy Scope. Make it clear the social media policy applies to all use (both on-duty and off-duty) of all social media (defined in way that includes current and future social media services) by all employees who use the employer’s equipment, or that relates in any way to the employer, its employees, its clients or customers, or its business.

Prohibited conduct. Whether you permit social media use during on-duty hours (and some argue there are benefits to doing so) or not, outline in the policy the prohibited employee social media conduct, including, for example:

• Disclosing the confidential or proprietary information of the employer or of its employees, clients or customers, or third parties with which it conducts business.
• Making or posting offensive, defamatory, disparaging, harassing, discriminatory or indecent content of any kind about anyone.
• Connecting personal social accounts to work email addresses, or creating accounts using the employer’s name or including its information in their social handles.
• Speaking on the employer’s behalf or representing they are the employer’s agent without the employer’s authorization.
• Interacting with the media where it affects the employer.

Privacy settings. Encourage employees to use the social media platform’s privacy settings and controls, explaining the lack of real anonymity online.

Employer monitoring. Emphasize the employer can and could monitor employee computer use and public social media activity and that employees should not have any expectation of privacy.

Breach consequences. Confirm that employees are accountable for whatever content they post on social media whenever they post it and outline the consequences for breach of the social media policy, including discipline or termination of employment.

Step 3: Implement the Social Media Policy.

To be enforceable – and thus effective – the employer must properly implement the social media policy, just as it must any workplace policy. In the particular context of implementing a social media policy, be mindful of these nuances:

Employee communication. Employees often assume their employer doesn’t have the authority to discipline then for off-duty social media conduct, or that they owe no obligations to the employer. Ensure the employee communications around the social media policy, including the training, address – and correct – these erroneous assumptions.

Consistent enforcement. Depending on your particular business, not all of your managers and supervisors might be as social media savvy as your employees. Be prepared to adjust the scope and depth of your training so all managers and supervisors have an understanding of social media sufficient to effectively enforce the policy.

Regular review, revisit & refresh. This is particularly important because of the speed with which technology generally and social media specifically are changing.

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Please contact your McInnes Cooper lawyer or any member of the Labour & Employment Law Team @ McInnes Cooper to discuss this topic or any other legal issue.

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McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

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