Fair comment or foul? That online post could cost you your job

By Tony Poland, LegalMatters Staff • That seemingly private opinion posted on social media may not be quite as harmless as you believe and could well cost you your job, says Toronto employment lawyer Jeffrey M. Andrew.

“People are dismissed because they’ve been publicly identified posting something that’s considered unacceptable, even though there is nothing to immediately tie them to their employer,” says Andrew, a partner with Cavalluzzo LLP. “You have to be careful. Free speech is not as free as you believe. It doesn’t immunize you from the consequences of your actions.”

Those who post online criticisms of their employers may naively assume that because their boss is not part of their social media circle that they have nothing to worry about, he tells LegalMattersCanada.ca.

“People will say they are posting at home, on their own time, on their private account. They believe what they say, including what they say about their employer, is nobody’s business,” says Andrew. “What they don’t understand is if it gets back to the employer, there could be repercussions. Even though there may be no one from work in your online group, it is still possible someone could show it to your employer. This happens in my experience.

“Fair enough, it is your computer and your thoughts, but you did it online,” he adds. “It’s kind of like putting a sign on the back of your car declaring your boss is an idiot and driving around town. What did you expect was going to happen?”

Misinterpret rights

Andrew says people often misinterpret their right to free speech and privacy.

“Using something you posted on your social media account against you is not necessarily a breach of your privacy because it is a very public forum, even if the group you are speaking to is small,” he explains. “People may respond that they have a constitutional right to free speech. The answer to that is the Canadian Charter of Rights and Freedoms only regulates or restricts what the government can do to people. It has very little to do with what private enterprise, or your employer, can do. You have free speech, but you can also be held accountable for that speech. Claims about privacy really may not get you very far.”

There are frequent examples of workers being disciplined for criticizing their employer online, Andrew notes.

But it is not only criticism of the employer that can land workers in hot water, Andrew says. He says posting anything “socially inappropriate or largely considered completely unacceptable by the public at large may cause an employer to distance themselves from you.”

“I have seen cases where people say or do things online that are rude, intemperate or inappropriate. People who take exception to it will track the poster down and find out where they are employed, then make it a public issue,” he says. “Employers just don’t want that exposure.

‘Interest of the enterprise’

“The employer, in my view, is not necessarily the guardian of your character but if for whatever reason you cause harm to the business, it is going to make decisions that are in the interest of the enterprise first rather than you. Whether it constitutes cause to terminate your employment without severance will depend on what you say and do.

 But that may be beside the point, Andrew says.

 “If the employer thinks your continued presence at work in light of the offending post is a significant concern it will act to protect the business first and foremost in my experience,” he says. “Don’t assume you will just be warned you to stop. If online action is seen as extreme conduct, and that is often what attracts this attention, the employer may move straight to termination.

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“You have a duty of loyalty to your employer. If you are disrespectful or bring the business into disrepute in your employer’s opinion, you could suffer the consequences. If you are not unionized and you lose your job you can still dispute whether severance is owed and how much, If you are unionized, your union can choose to grieve – a long process usually – and seek your job back among other things. But in both cases, you suffer the shock of losing your job.”

Andrew says people tend to underestimate the power of their words and the lengths some on social media will go to when seeking retribution if they believe someone has stepped over the line.

Air grievances

He notes that years ago when people had a gripe about work, they might go out with colleagues and blow off steam.

“Then they’d go home and that was the end of it. There was nothing public about it,” Andrew says. “But now when people are typing on a computer or a phone, they will say things that, honestly, I don’t think they would ever say to someone in person. There seems to be a lack of an editing function.”

He says it is also possible people are taking their cues from people such as U.S. President Donald Trump, who uses social media to circulate ideas regardless of accuracy or decorum.

“I believe it’s one of the reasons why social media companies now are coming under increasing scrutiny,” Andrew says.

He acknowledges that people are fallible and may sometimes post things they shouldn’t. In such cases, “acting promptly, taking it down and apologizing” may help mitigate the damage.

“In the end that may not help, depending on what was posted,” Andrew says.

He says a good rule of thumb when posting on social media is to set aside what you have written and reconsider it before posting.

“Think twice,” Andrew says. “If you realize that something you are going to say or do or support is not generally going to be acceptable at large or to your employer, proceed with caution. You need to understand that it could cost you your job.”