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Among (Facebook) friends: Investigating personal social media posts as alleged workplace harassment

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Social media can be a great way to connect with friends and family, especially those people we don’t often get to visit in person.

Unfortunately, social media can also be a venue in which workers make demeaning, threatening, and insulting comments about colleagues and supervisors.

Employees can use personal social media to harass co-workers in a number of ways: sending harassing or threatening messages to the victim, damaging the victim’s reputation, publishing personal information about the victim, and/or encouraging others to harass the victim, to name a few.

Many employees still view the comments they make, and conversations they have, on social media to be private, akin to a live conversation they have with a friend behind closed doors. Employees who make allegedly harassing comments on social media are often very surprised when they find themselves the subject of a harassment investigation. Such respondents often challenge the investigator’s “jurisdiction” to investigate comments or posts published by the respondent on a personal social media channel.

Can personal social media postings be investigated as alleged workplace harassment? And if so, what should an investigator keep in mind?

An illustrative case

Unbeknownst to many employees who use social media, it has been long established in the case law that off-duty conduct, including social media posts, can be grounds for discipline.

In considering such cases, decision makers first look to the same indicia of disciplinable behaviour as they do when they consider other types of misconduct, such as whether the misconduct has been proven, the nature of the misconduct, whether the respondent was provoked and/or remorseful, and the respondent’s disciplinary history.

However, in off-duty misconduct cases, decision makers must also consider whether the respondent’s actions have sufficient connection to the workplace. Connection to the workplace is established if the employer can show one or more of the following:

  1. the conduct harms the employer’s reputation or product;
  2. the behaviour renders the respondent unable to perform their duties satisfactorily;
  3. the behaviour leads to refusal, reluctance or inability of the other employees to work with the respondent;
  4. the grievor has been guilty of a serious breach of the Criminal Code thus rendering their conduct injurious to the general reputation of the company and its employees; or
  5. the conduct places difficulty in the way of the employer’s managing of its works and workforce.1

When it comes to personal social media posts made about a co-worker, factors that are relevant to the question of whether there is sufficient connection to the workplace can include:

    • whether and how the complainant or other colleagues saw or learned of the post;
    • how many colleagues had visibility to the respondent’s social media account at the time the posts were made; and
    • how likely it would be that colleagues who read the post would understand it referred to the complainant.

Indicators of these can be, among other evidence:

    • whether the post names or otherwise identifies the complainant;
    • the comments people made on the social media post;
    • the social media account’s privacy settings at the time the posts were published; and
    • the number of colleagues whose social media accounts were connected to that of the respondent (for example, by being “Friends” on Facebook or a “follower” on Instagram or Twitter).

A decision that nicely illustrates how arbitrators assess such cases is United Steelworkers of America, Local 9548 v. Tenaris Algoma Tubes Inc. (“Algoma Tubes”).2 In this case, the grievor posted to his own Facebook profile highly offensive and threatening comments about a colleague. The posts did not name the colleague, but described a unique physical characteristic of the colleague, which the grievor’s post suggested should be the focus of a sexual assault. In upholding the grievor’s dismissal, the arbitrator relied on the following:

    • It was not disputed that the grievor published the posts;
    • The posts were “vicious and humiliating,” and arguably threatening;
    • The grievor’s Facebook profile privacy settings were open, such that the profile was viewable by the public as well as the few colleagues who were the grievor’s Facebook friends;
    • The description in the post of the colleague’s unique characteristic, and a nickname, made the targeted colleague identifiable to other colleagues;
    • Comments made by colleagues to the grievor’s post indicated that coworkers knew whom the grievor was talking about; and
    • The posts were not published in the “heat of the moment”; the grievor published the posts in response to a minor workplace disagreement that occurred several hours before. The posts remained published for 10 hours, during which time the grievor responded to comments to his original post with further vicious and threatening comments about the targeted colleague.

As is often the case, the arbitrator in Algoma Tubes noted that the employer’s policies did not contain a specific prohibition relating to social media, but held that this did not mitigate the grievor’s culpability for his harassing behaviour. Arbitrators typically find that employees should know that employers cannot tolerate harassment of workers that occurs outside of the workplace, including by way of social media.

Tips for investigating alleged harassing personal social media posts

Prescreen for a potential police investigation: Material published online can, in certain circumstances, ground criminal charges. Consider contacting the complainant in advance of their interview to ask whether they have, or plan to, report the social media posts at issue to the police. If so, consult with the employer as to next steps to ensure the workplace investigation does not compromise the police investigation.

Consider various potential sources of relevant evidence: Where alleged harassing personal social media posts are at issue, evidence-gathering can include party and witness interviews, documents and screenshots provided by the interviewees, the investigator’s own review of the social media accounts and posts, and, if available, the retrieving of relevant information from the employer’s information technology system.

Consider the entire post, including surrounding posts and comments: To the extent possible, it is best to view the entire offending social media post(s), including all the comments made by others or the respondent in response to the posts. Comments can help shed light on who read the post(s), how they understood what the respondent wrote, and sometimes, how the respondent meant the original post.

Similarly, other posts made on the respondent’s profile – or perhaps other websites or social media profiles, if a conversation moved between them – may provide important information about the context in which the allegedly harassing posts were made.

Gather evidence relevant to the post’s connection to the workplace: Recall from Algoma Tubes that the investigation may require evidence of the extent to which the social media posts had a connection to the workplace. Below are some questions to consider:

    • What were the social media account’s privacy settings at the time the posts were (and remained) published? Could anyone see the posts if they looked at the respondent’s social media profile? Or was visibility limited to, for example, Facebook Friends or Twitter/Instagram followers?
    • To what extent would the posts be understood by the profile’s audience as referring to the complainant? Where the complainant is not named in the posts, you may need to gather evidence as to the likelihood that the profile’s audience would understand the post as relating to the complainant. For example, did the posts refer to the complainant by a nickname that is known to colleagues?
    • How much of the respondent’s social media profile audience is composed of other employees of the organization in which the complainant and respondent work? In addition to the evidence provided by the respondent and witnesses on this point, you may be able to review the comments on the posts (if any) to check if colleagues are among the commenters.

Give the respondent full opportunity to respond, and maintain an open mind: In the face of a screenshot of a social media post that appears on its face to be offensive and to have been published by the respondent, it can be challenging to not prejudge the matter and ensure the respondent has full opportunity to respond, and to ensure the respondent’s evidence is properly considered. Giving the respondent full opportunity to respond to an allegation about social media posts will typically include asking the respondent, among other questions that depend on the specific circumstances:

    • Whether they published the post. It may appear obvious that they did, but social media profile hacking does happen!3
    • When they published the post, and if it has since been deleted, when they deleted it.
    • Why they published the post.
    • To what and whom the post refers. In using the words in the post, what did the respondent mean?

Remember to focus on the relevant time period: In gathering evidence about social media posts, in particular, evidence related to the social media profile’s audience and privacy settings, remember that the most relevant evidence relates to when the allegedly offending post was published, rather than when the investigation is being conducted.

Of course, the preferred way to address harassment via social media (or any other avenue) is by preventing it. To this end, forward-thinking employers communicate to their workers clear expectations as to appropriate social media use. A well-constructed, comprehensive Social Media Policy can play a significant part in this.

Finally, in considering your organization’s approach to social media postings, don’t forget the obligation to protect workers from harassment from customers who post online! To learn more about that obligation and how to meet it, read our blog post, “Taming Twitter: 5 ways to manage customer-driven harassment of employees on social media.”

1 Millhaven Fibres Ltd. & Oil, Chemical and Atomic Workers I.U. Loc. 9-670, [1967] O.L.A.A. No. 4. (Anderson), at page 8.

2 2014 CanLII 26445 (ON LA).

3 For example, see Children’s Hospital of Eastern Ontario v. Ontario Federation of Healthcare Workers, L.I.U.N.A. Local 1110 (Grievance of Dereck Khan), 2020 CanLII 6444 (ON LA). The grievor in this case denied sending harassing messages to the complainant through social media. Only when the labour arbitrator subpoenaed information from the social media host company did it become apparent that the grievor’s social media account had been hacked and duplicated, confirming the harassing messages were sent from the duplicate account.

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