Social media blurs line between personal views and employment

Sunira Chaudhri

Sunira Chaudhri

Toronto Employment Lawyer

On April 7, Musk tweeted a photo of himself that appeared to be taken during a Joe Rogan podcast when the two infamously smoked marijuana during the episode. The caption to the photo reads: “Twitter’s next Board meeting is going to be lit.” He also recently tweeted, “Free speech is essential to a functioning democracy.”

While social media may be the friendly companion to the unoccupied, with time to spare, it can be the foe of the employee.

 

After all, social media platforms collectively act as one’s modern day resume.

 

No stranger to social media is Elon Musk, CEO of Tesla and now owner of more than 9% of Twitter. He’s also joined Twitter’s board of directors.

 

On April 7, Musk tweeted a photo of himself that appeared to be taken during a Joe Rogan podcast when the two infamously smoked marijuana during the episode. The caption to the photo reads: “Twitter’s next Board meeting is going to be lit.” He also recently tweeted, “Free speech is essential to a functioning democracy.”

 

Following Musk’s board appointment, at least one Twitter employee reportedly commented on the company’s Slack channel “If an employee tweeted some of the things Elon tweets,” they’d likely be the subject of an investigation from HR.

 

The employee went on to ask, “Are Board members held to the same standard?”

 

Typically employees can expect for their social media presence to be fair game when it comes to employment. Employers may implement social media policies, especially with respect to online conduct and language to promote and avoid when representing the employer. If an employee posts ‘inappropriate’ content, disciplinary action may be taken in the right circumstances.

 

For example, in the case of York University Staff Association v. York University, a University employee posted anti-Semitic comments on Facebook and then publicly criticized the University for disciplining him. The employee worked as a laboratory technologist for York University for almost 23 years. The Arbitrator in this case found the employee made frequent posts that expressed “blatantly anti-Semitic views, and perpetuated racial stereotypes.”

 

He was subject to progressive discipline, including suspensions and warning letters. Part of the association’s argument before the arbitrator was that the employee was not in a sensitive role such as that of a “school teacher” but, rather, was a laboratory technologist in a University where controversial political expression that may be offensive to some is valued and protected. The association argued that a “fair minded objective observer” should conclude that any “reputational harm” to the University was not substantial enough that continued employment would be untenable.

 

The arbitrator disagreed and the termination was upheld.

 

Employees of all stripes must be cognizant of how their social media posts can colour the way they are perceived in the workplace and lead to serious consequences.

 

While Musk’s tweets can at times be controversial, to be sure, his outspoken nature will likely force Twitter to evolve its own policies on social media use, allowing employees more liberty to express themselves online without fear of consequence or employer interference.

 

Of course as a board member and fiduciary of Twitter, Musk should consider his power and influence as an employer and leader. Employers must walk the walk.

 

When enforcing or creating policies around social media, or other expectations within the workplace, management must live and embody those expectations, and cannot themselves resist reasonable policies that will be imposed and upheld for everyone else.

 

Now on to your questions for this week:

 

Q. Our small consulting company employs about 15 people and our team is very close knit. Unfortunately, I have to let three people go. How should I calculate what to offer these employees on termination, when I am certain they will discuss the details of their offers with one another?

 

A. Firstly, if there are employment agreements that lay out what these employees are entitled to on termination, consult those to help give you a baseline in terms of their expectations. Of course, you must ensure that any offer on termination be fully compliant with the Employment Standards Act or other relevant provincial employment legislation that may apply the termination pay in the case of your employee. You may also consider other factors like age, length of service, position, income and availability of similar employment. Employees in niche roles may require more time to re-employ. When making an offer on termination that is in excess of Employment Standards Act minimums, clearly indicate that maintaining confidentiality with respect to the offer is integral. It is natural that some employees may receive packages that differ from those of their peers based on these factors.

 

Q. Sixth Wave. Why are offices reopening now?

 

A. While most employers have been free to reopen their workplaces for most of the pandemic, this is the first time that many remote workers have been asked to return to work. As COVID lives on, employers should remain cognizant of PPE procedures, social distancing, and flexible work arrangements when employees are showing COVID symptoms, which will help ease the transition back into the office.

 

Have a workplace issue? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future column.

 

The content of this article is general information only and is not legal advice.

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