If employers were not already convinced that social media is a legitimate concern and that they need to take steps to control their employees’ use thereof, some recent events should make this even clearer. Within the last week, HMV found itself on the wrong end of extremely negative publicity after some of its employees took control of the company’s Twitter account and effectively provided a live Twitter feed as they were fired. The tweets began with “”We’re tweeting live from HR where we’re all being fired! Exciting!””, and continued for all of the world to see. While these tweets were being posted, company executives became aware of the situation, but then struggled to reclaim control of the Twitter account, losing valuable time and causing additional damage to its reputation, particularly when it became known that they did not know how to reacquire control.
Also in the news (at least in Canada), an Ontario Hockey League referee visiting Sault Ste. Marie for a game posted extremely unflattering and offensive comments about the female population of Sault Ste. Marie, much to the chagrin of the league. Although he tried to remedy the situation with an explanatory tweet in which he claimed that it was, essentially, an inside joke with a friend, the league suspended the referee for the balance of the season and playoffs.
And let’s not forget the incident a few months ago when an employee of a clothing store for larger men posted a reprehensible comment on the Facebook memorial wall for Amanda Todd, a 15-year-old victim of bullying that committed suicide. When someone viewed the post and discovered the identify of the poster and the company that he worked for (all of which was information readily available online), they contacted the employer, who promptly dismissed the individual.
Ownership and use of social media accounts is not something that was addressed in employment contracts in the past. This is a good example of why, when I work with clients, I discourage them from reusing the same templates over and over again without considering whether circumstances or laws have changed, whether there are new issues to be addressed, or whether the contract is even applicable to the position and individual in question. Templates are wonderful tools, but should not be used without proper consideration, and should evolve over time.
In any event, employers should adapt their contracts of employment in order to address social media. First, they should consider whether the individual is expected to promote the company through the use of social media. In that case, the company should take steps to ensure that it retains ownership of all social media accounts. Without such a contractual agreement, ownership of social media accounts and corresponding friends, followers and connections remains an open question. In addition, employers should set out clear rules regarding how social media accounts are to be used. The minutia might be better addressed in a separate document, but important or high level aspects should be set out in the contract, and all policies or other documents should be explicitly incorporated into the contract.
Conversely, if there is no reason why the employee would use social media for the benefit of the company, contracts and policies should be used in order to confirm what the employee can and cannot do away from work, as well as to confirm that off-duty conduct can result in discipline and, in appropriate situations, dismissal. It is often helpful to confirm that other policies, such as those against harassment and bullying, apply in the social media sphere as they do in the physical workplace.
Finally, the recent Supreme Court of Canada decision in R. v. Cole has raised some questions regarding an employer’s right to view the contents of company-owned equipment such as laptops, Blackberrys and other devices. I have written about this subject before, and remain of the view that the decision in Cole was not intended to impact the rights of employers, but it is nevertheless prudent to address the issue in contracts and policies and confirm that employees should have no expectation of privacy when they use employer-owned equipment. Doing so can only augment the employer’s position if such a search is ever challenged.
For years, I have worked with clients and strongly recommended that they use employment contracts for every employee. The rapid emergence of social media as a significant concern for employers serves as a useful reminder that employers should avoid using the same contract template for every new hire, and should take the time to consider whether the contract they are presenting addresses all of their needs and concerns. The same applies to their existing policies, which should be updated regularly in order to address new concerns and changing laws.
Miller Thomson LLP