Shift Happens: When does an employee’s online behaviour outside the workplace cross the line?

No matter what unacceptable face they've been presenting on the internet, employees have a right to privacy.

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What’s your next move? You may not have one

No matter what unacceptable face they’ve been presenting on the internet, employees have a right to privacy

You’re the owner of a private company. While perusing social media posts, you chance upon a photo of an employee clearly taken several years earlier. He’s smiling, beer in hand—and parading around in blackface. What do you do?

Disclosure: I have a past. You probably do, too. That past may have, say, involved wearing a Halloween party costume that seemed very clever at the time but today would be considered very unclever, indeed. (Not blackface. Still.) At that same party, you may have mixed with equally clever people, many of whom mined a similarly brilliant conceptual vein. At the time, no eyebrows were raised. As the clichéd disclaimer goes, it was the 1980s.

But it’s not any longer. Mores shift, and what is and isn’t acceptable evolves. Over time, language and symbols, which are never static, can become charged with reinterpreted meaning. Which brings us up to today: like a rusty WW2 grenade buried in a farmer’s field, an old photo posted online can potentially blow your life to bits. Right, Justin?

In this situation, as an employer, you have response options. But first, um…why were you searching a staff member’s online life? “Employers shouldn’t actually be trolling through social media just to see what employees are doing,” says Vancouver lawyer Keri Bennett of Roper Greyell, who specializes in workplace privacy law. “It’s important for employers to remember that employees still do have privacy rights.”

Nor should you rely on Twitter posts or Instagram feeds when deciding whether to hire someone. A 2017 report by B.C.’s Office of the Information and Privacy Commissioner outlined the risks involved when an employer accesses a potential employee’s social media representations. These include collecting inaccurate and irrelevant information—plus, you don’t have the freedom to cast your net as widely as you might think.

But what if the person is already working in your company? What’s your next move? First, you may not have one—unless the post in some way intersects the work environment. “The issue is, is this connected to the workplace?” says Bennett, adding that the content would have to affect the reputation of the employer, or the firm’s relationship with customers, suppliers or other employees.

Even if this is established, the employer still has to meet certain obligations. “There should not be a knee-jerk reaction,” Bennett warns. As an employer, it’s your role to give a fair hearing. You have the right to conduct an investigation, but the employee also has a right to respond. Here’s where things get textured. How old was the photo? Was it from, say, decades earlier? Was the picture taken at a Halloween party or a Klan rally? Was the employee wearing a company T-shirt or were they essentially unrecognizable, aside from the tag? Was the photo real or doctored? All of this and more may have to be considered before you take action.

And if the photo doesn’t impact the business as outlined above? “If there’s really no connection to the workplace, then the employee actually shouldn’t be disciplined,” Bennett says. “The employee is entitled to a private life.”

Of course, if you’re a duplicitous sort, you could simply not mention the post and terminate employment without cause. However, if you relied on the photo as your motivation for removing an employee but have decided to not disclose this, you could be buying yourself a big ol’ bag of hurt. “Those ‘without cause’ terminations should also not be conducted in bad faith,” Bennett says. “The employer is exposed to potential liability if they engage in a bad-faith process.”

When it comes to offensive behaviour, the best defence is, well, a good offence. Establishing a well-thought-out social media policy—and ensuring that everyone understands it—will go a long way toward preventing any future problems arising from where privacy rights cross employment expectations.

As will the recognition that people screw up. We all have a past. Office towers are literally glass houses. Exercise caution when throwing stones.

Fictional scenario. Article not intended as legal advice.