Social media and the law: where does the employer’s power lie?

On Ontario Today on CBC radio last week, they aired an interview with Janice Rubin, a partner at Rubin Thomlinson LLP, about legal advice on what your boss can and can’t do with what they learn about you from social media.

As co-host of Young PR Pros, this is a subject we have come upon time and time again. Being professional, respectable and smart on social media can bet the difference between getting hired or being ignored, or between keeping a job and getting fired. Naturally, I was intrigued when this came on the radio. I made a few notes to share with you some of my opinions in regards to some of the questions they asked Rubin during the show.

Can an employer fire you if they catch you in a lie, using social media?

We have all heard the story. Employee calls in sick, goes out to a party, takes a picture of him/herself with a tall glass of beer and posts it to Facebook forgetting that they had friended their boss when they got hired. Boss finds out, employee gets fired/employee gets official warning that goes on their file. Does the employer have the legal right to do so?

I say, why not. If they don’t have the right, they should. Rubin explains that employers don’t quite have full power to be able to terminate without consulting the employee to ensure the information they gathered through Facebook is accurate.

But, let’s adapt the story to the times before Facebook. Employee calls in sick, goes shopping instead and suddenly runs in to their boss on his/her break from work. Boss terminates employee or gives him/her a warning/strike. Aren’t the two scenarios fairly similar.

The grey, however, is when you add in a middle man, a colleague who tattles to the boss saying they saw a picture in their news feed. But this grey would still exist if it were a colleague saying they saw you walking in the mall when you were supposed to be home sick.

Social media can make catching employees in the act of lying easier. Regardless, be it through Facebook or in person, if an employee is caught lying that should be grounds enough for termination. It shouldn’t matter in the intelligence came from a human source or Facebook.

Can a potential employer use information on your social network as ground NOT to hire you?

A big ‘ol YES. If you can’t be professional in public – and let’s be real here, the internet IS public – then what is the employer going to expect when you work for them? Of course, this is different for each career and job out there, but I am a big believer in “a company is only as good as its employees”. Therefore, if your employees are not professional online or in public, that reflects on your company.

Rubin was asked if an employer has the legal right to request to see Facebook accounts, even if they are private profiles. Rubin says they don’t have the legal right to demand it, but they can ask it nonetheless. If you don’t want to share it, the employer may think you are hiding something.

Some people solve this solution by having a private profile and a public profile. Personally, I could never keep up two profiles. And, we need to remember, that what we post on the internet is not only permanent, but you also relinquish rights to any image/video, meaning you have little control of where it may end up online. The easy solution to this is… just be professional online. You wouldn’t walk around an office building in your bikini, so why would you post it online for everyone to see?

If you have a work phone/device, should you use it for personal use or buy a separate phone/device solely for personal use?

Rubin encouages people to make that dinstinction between personal devices and professional devices, even if the personal use is not incriminating, because you never know. An employee can request access to all information, pictures, videos, anything on a business device at anytime without notice. Therefore, if you feel uncomfortable with the idea that your boss may be able to read all your personal emails, then seperate the two.

I think PR and communications professionals live in a more grey area. For example, some personal connections and friends that I have built over the years, may one day turn in to my clients. At what point do I start separating emails with people who were friends first and then client, or vise versa. Depending on the client, sometimes you create a bond with that client and even after the project is done you may still continue a friendship, at what point do those emails have to be seperated. Not to even mention social media connections and engagement. The person I am on social media benefits both my personal career growth and my company, it would be impossible to seperate the two.

Alas, I revert back to the simple, clear and fool proof plan… just be professional everywhere. If there is a particular conversation that is clearly personal, for example a personal question you need to ask your sister or best friend, or a serious conversation you need to have with your spouse or parent, then don’t use business devices/email/social media. And vise versa, if there is a particular conversation that is clearly business related, for example negotiation a deal with a client, sharing of sensitive client data, then don’t use a personal device/email/social media.

What do you think? I have addressed numerous points in this blog post, and I would love to hear people’s opinions. Even if that opinion is contrary to mine.

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