Of all the training seminars you could send your staff to this year, put this theme on the list: “You can be fired for your conduct outside working hours, especially on social media.”
Last week marked the one-year anniversary of the riots that swept Vancouver on June 15, 2011, after the Canucks lost Game 7 of the Stanley Cup Finals. People continue to reflect on that awful night because of the damage it caused to the city’s reputation.
Some of those charged with participating are now having their day in court, and the sentences have been severe. One individual with no criminal record, who turned himself in and who pleaded guilty, was sentenced last week to a month in jail. Because he had no criminal record, he expected no jail time. As he was lead from the courtroom to prison, he said: “This is crazy.”
“Well,” many in Vancouver would reply, “you should have thought of that on June 15, 2011.”
Hundreds of others charged in connection with the riots will have their court dates in the coming months. Some of them boasted about it openly on Facebook. Others discovered their pictures on the pages of Vancouver newspapers smashing windows or stealing handbags. They had a first-hand lesson in reputation management within hours of the riots, because many of them were fired from their jobs when their “after-hours conduct” was discovered by their employers.
This begs the question: Can an employer fire employees for what they do outside office hours? With very few exceptions, an employer can fire an employee for just about anything. It just comes down to whether the employer owes the employee severance or if the employee’s conduct is so egregious, the employer can dismiss the employee for “cause” with no severance at all.
After the riot, I’m aware of at least one business that fired a well-liked and long-standing employee because she was photographed looting Sears. Her picture was one of scores uploaded to websites dedicated to catching the rioters and it found its way to the pages of the Vancouver Province and Vancouver Sun.
Whether the business she worked for had to pay four weeks severance or no severance was not as important as firing her. The business just wanted that person gone because of the damage her continued employment was having on the company’s reputation. The clients of the business read the papers too.
So one lesson all employees should learn is that whether they are receptionists, servers, salespersons or any other employee who directly engages with the public, they are the face of the company and an ambassador for its brand and image. If their photographs are all over the newspapers looting a department store during a riot, customers could well associate an employee’s “after-hours activity” with the employer.
What about an employee’s conduct on social-media platforms such as Facebook?
After the riots, there were numerous examples of people bragging to their Facebook friends about the people they punched, the merchandise they looted and the cars they torched. Because of my interest in online reputation management, I followed many of the posts that were reported in the print and online media – ones that were public, with no privacy settings. After the boasting, one “friend” would invariably say to the rioter: “ take this down … it’s evidence.” Another would say, “you disgust me and I’m unfriending you.”
A riot is an extreme example, though. What happens more often are Facebook posts that deride the employer, the management or the employee’s co-workers. A British Columbia decision, Lougheed Imports Ltd. (West Coast Mazda) versus United Food and Commercial Workers International Union Local 1518, upheld the termination of employees who were fired for making insulting remarks about their employer and managers during and after a union certification drive. The comments were said to be akin to insubordination on the shop floor, because the employees had so many friends, they could have no reasonable expectation of privacy.
Said the B.C. Labour Relations Board:
The comments made by the Complainants on Facebook were damaging comments about the Employer’s business, such as “don’t spend your money at West Coast Mazda as they are crooks out to hose you and the shop ripped off a bunch of people I know.” These Facebook comments were made to either almost 100 or 377 people including employees. I find, … that the Complainants could not have a serious expectation of privacy when publishing comments on their Facebook websites and therefore the comments are damaging to the Employer’s business.
The comments also included very offensive, insulting and disrespectful comments about supervisors or managers. As the Facebook comments were also made to other employees and former employees that were friends with J.T. and A.P. on Facebook, I accept the Employer’s assertion that these comments are akin to comments made on the shop floor. The comments about the supervisors amount to insubordination …. as they are “used as a verbal weapon to degrade a Supervisor in front of others.”
Employers should create social media policies that are acknowledged by the employee to be a term of their employment, the breach of which could result in suspension or termination. These policies could specify, at the very least, that no employee will post anything on any social media platform that could be reasonably expected to tarnish the brand and reputation of the employer, or any manager or co-employee of the business.
The employer would admittedly have to try to monitor what is said about the business online.
It may be “hard to fix stupid,” even with such policies in place, but it will certainly give the employer a leg up in circumstances where employees with no reasonable expectation of privacy are using social media platforms to disparage their employer, the brand and co-workers.
Educating employees about responsible conduct on social media just might make them think more carefully about what they say and do online.
Tony Wilson is a franchising, licensing and intellectual property lawyer at Boughton Law Corp. in Vancouver, is an adjunct professor at Simon Fraser University, and is the author of two books: Manage Your Online Reputation, and Buying a Franchise in Canada. His opinions do not reflect those of the Law Society of British Columbia, SFU or any other organization.