Social Media Policy Writing By Kellie Auld

Let's face it. Social media is not going away any time soon. As much as there are some very beneficial aspects to social media and networking, we must also realize that there is also a dark side, and employers must protect themselves and their employees.

Employers must accept some responsibility for how their employees manage social media - in and out of the workplace. And...as with many other things in life; it may not seem fair, but nevertheless, the responsibility for spelling out what is and is not appropriate behavior must fall somewhere. Since an employer could ultimately terminate an employee for his or her comments via social media - it makes sense that the responsibility would rest with the employer.

Remember the Stanley Cup riots in Vancouver? Social media definitely had a part to play there. People were fired because of their participation in those riots - and how did the employer learn of their participation? Why, through social media of course. How many of the employee dismissals will be upheld remains to be seen, but in some cases, I suspect they will stand. As an example, let's say that you are employed as a security officer and your employer saw you on a You Tube video that was posted to Facebook, in which you were looting a neighbouring store. With the position you hold, that could certainly be viewed as damaging the employer/employee relationship irreparably; hence, supporting the employer's decision to terminate. No doubt, social media has and will continue to make a significant change in our lives.

I'm sure those of you who keep up to date with BC Employment Law are also familiar with the firings that occurred over Facebook comments about a supervisor (West Coast Mazda Lougheed Imports Ltd. (c.o.b. West Coast Mazda), [2010] B.C.L.R.B.D. No. 190). To this point in time, the firings have been upheld.

From here on in, I think we will always have instances in which social media content will find its way to our courts - and employment law cases will only be part of our future with social media.

While we all have our right to 'talk' with our friends, we should consider whether or not our 'talk' can damage another person's reputation or that of a company. Social media utilizes a different communication method (as opposed to face-to-face conversation) but realistically, 'content is still king.'

The best thing that employers can do is create proactive policies that spell out very clearly what is deemed to be appropriate and inappropriate use of social media. Some companies already have policies that relate to email and Internet misuse; but we need to go a step further and include social media and identify what that is. Ambiguity does not hold up well in court.

When you hire people, let them know from the beginning that such a policy exists - educate those that are already in the company about the policy (this could mean change to existing policies or new ones created) - let everyone know the consequences of inappropriate behaviours (up to and including dismissal) and make sure that policies are signed off and linked to other related policies. For example, confidentiality; code of conduct; privacy, etc., could all be linked to social media.

In terms of writing policy, a good rule of thumb might be to communicate to employees that they should ask themselves if what they are about to comment on, using any form of social media, could be said in a face-to-face conversation. Ask them to think about how they would react if what they were about to publish out in the world of the Internet were said about them. Take a moment to pause...and decide if the 'world' is ready for your message.

Common sense, unfortunately, is not so common - so employers must spell it out - clearly!

Clearly, any breach of policy would still need to be viewed on a case-by-case basis and some situations may be very complicated and could even involve external workplace or computer forensics investigations or legal counsel. But a good starting point is going to be through the use of effective, clearly communicated and well-constructed policies.

So, like it or not, we need to come to terms with the fact that social media is going to continue to evolve and therefore, change relationships in our personal and working lives.

Prepare yourselves as employers and do the right thing - develop good policies and find a way to embrace the changes we're up against. Your employees (and your shareholders) will thank you for it.