Leadership

Can you Fire Someone Because of What they Post online?

 

Because of Facebook, Instagram, Twitter, Snapchat etc, we now have instant access to what people eat, see, wear and do- that means no more secrets! It would be important to know then- could you fire an employee for what they post on social media?

Last May, an insightful talk: “Social Media, a Canadian Employers friend or foe” given by employment lawyer Stephanie Weschler from the offices of Stikeman Elliott, offered much needed insight into this matter. For those who were not able to attend the conference, we will highlight some key points that could help you better understand your rights as an employer and help out in sticky situations.

Question 1: Can you revoke an employee’s sick leave because of posts they publish on Social Media outlets?

Answer: Perhaps.

In a hypothetical situation- let’s say an employee takes a leave of absence for mental health reasons/burnout for a period of time. This person who should be resting and seeking help posts up pictures on Facebook and Instagram of them swimming with dolphins in Cuba and going out and drinking/partying with friends. Is this person being dishonest? Is this legal proof/grounds for firing them or revoking their sick leave?

Answer: No.

Legally, if someone is on a vacation- or out having fun with friends, pictures of them engaging in such activities is not grounds for revoking the sick leave or firing the employee. Quite the contrary, if someone is suffering from a burnout or a stress-related issue, taking time to enjoy life is probably a very good idea.

Question 2: What about if the pictures prove that the person was lying about the state of their health?

Example, they take a leave for carpal tunnel and are clearly engaging in activities that require pressure on the hands and wrists, or if they’re back is supposedly broken and they are pictured doing the ironman race?

Answer: Yes.

In this case, the pictures prove that the employee in question either lied or exaggerated their symptoms. The pictures can be used to have HR review – and potentially revoke-the sick leave of the employee.

Question 3: If a person calls in sick and their social media showcases them going out and getting drunk the night before, can they be fired?

Answer: No.

There are many grey areas even with social media. Though a picture may not be grounds to terminate employment, you should definitely speak with your employees and let them know that everyone can see their posts and to be more discreet.

Question 4: Can a company fire an employee if they publicize pictures or posts on social media that suggest terrorism, racism or values that do not represent the company?

Answer: Yes.

Even if it’s on a person’s PERSONAL Social media account, if an employee posts things that are considered dangerous, harmful, discriminatory or illegal, this could be grounds for termination of employment.

As a hiring authority, be mindful and aware of what your employees post on social media. Though their social media profiles belong to them, certain things they do and say on these platforms could potentially impact their jobs as well as your company’s image- directly or indirectly – and it is important you notify them of company policies regarding social media.

 

 

WeschlerS_webStephanie Weschler is a senior associate and a member of the Employment and Labour Group, the KM and Continuing Legal Education Committees in the Montréal office of Stikeman Elliott.

Stephanie’s practice is focused on all aspects of employment and labour law, including executive compensation matters, providing human resources and strategic advice to clients on all employment-related matters including in transactional files.

Contact info: (514) 397-2402
sweschler@stikeman.co

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