Employers are right to be concerned about the reputational risks brought by employees’ controversial social posts – but what can be done?
Social media is a phenomenon which can launch an ordinary person to global fame (or infamy) in a matter of hours. Saying, or even “liking”, something which causes outrage triggers social media algorithms which then promote that post to more and more people. It is called “going viral” because that sort of information spreads more rapidly than COVID Delta.
People can become overnight celebrities or villains for many reasons. The offending post could be a photo of a drunken night, a hot-take on a political issue, slagging off your boss or even an ill-judged joke the user thought was funny after a beer or six. While the posts are almost always made outside of work and on a personal account, employers are rightly concerned about reputational harm by their employees’ social media activity.
That risk is increased by modern online tactics of “doxing” and “dogpiling”. Essentially, people who don’t like the original post turn into detectives, find out about the person’s life and job then flood the employer with messages, emails and negative reviews to punish the person. In New Zealand, recent examples of this include a Mitre 10 employee who joked about mowing down cyclists with his car and a young lawyer who took an ill-advised trip to Wanaka during the COVID-19 lockdown. The law firm who employed the latter was forced to take its website offline to deal with the response.
So can I fire an employee who posts something offensive on social media?
There are plenty of stories from the USA of people being fired for offensive online behaviour. One of the most famous examples is from 2013 involved a 30 year old posting to her 170 Twitter followers. About to board a plane to South Africa she tweeted a series of jokes about her trip, ending with a satirical take on clueless Americans “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!”. Having pushed the button, she put her phone on flight mode for the 11 hour flight and was oblivious to the response. People take things literally online. By the time she had landed there were tens of thousands of angry responses and she lost her job (ironically, in a senior PR role).
While the above example might seem straightforward, in New Zealand employers have a number of legal obligations to employees. If an employee posts something questionable you cannot take action against them just because you disagree with it. The starting point is that what an employee does in their private life is none of the employer’s business. To affect their employment there must be a link between the employee’s actions and the job or employer.
Examples of social media activity which could have such a link include:
- Posts that are critical of the employer or other employees;
- Activity that is fundamentally incompatible with the values of the company and has an actual impact on the company;
- Posts which reveal commercially sensitive information; or
- Posts which are evidence of other misconduct tied to the employment. For example, where an employee posts themselves doing a physical recreational activity when they are off sick.
Of course every situation must be judged on its own merits. As with any employment process, an employer also needs to go through a fair process with the employee before making any decisions. That can take several days. The difficult question for employers is how to address any social media (or regular media) demands for comment or firing. You may be feeling pressured to release some information in response. It is important to remember that employers have privacy obligations to the employee and so cannot talk about employment matters without that employee’s permission. If an employer engages with “the mob” they are also encouraging that doxing / dogpiling behaviour. We strongly recommend taking professional advice before making any sort of comment or statement in those early days.
How can we help?
WRMK Lawyers has Northland’s largest team of employment law specialists. If you need some help or guidance, please give one of us a call or contact your usual WRMK lawyer for advice. You can view our Employment Law team here.
WRMK Lawyers takes all reasonable care to make sure that the information in this article is up-to-date and accurate at today’s date. It is necessarily general information and not intended as legal advice to be relied upon.
Our thanks to Simon Davies-Colley and Laura Lee for writing this article.
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