Can You Fire a Rioter? Maybe...

On Episode 9:Can You Fire a Rioter? Maybe… – Mark Fancourt-Smith and Alix Stoicheff speak to our Labor, Employment and Human Rights partner, Ritu Mahil on what options employers have when confronting problematic off-duty employee conduct and how employers can protect themselves with a social media policy. 

Chapters

• 0:53 What can you do if an employee is breaking the law or engaging in socially unacceptable behavior on social media?
• 4:00 Does the post have to be connected to the employer for action to be taken?
• 6:38 What goes into a social media policy?
• 8:52 Does it matter how you are identified for the connection with an employer to be made?
• 11:03 What should you do if you find yourself in a media crisis?

Transcript

Mark Fancourt-Smith  00:08

Welcome to Lawson Insight. I'm Mark Fancourt-Smith, the litigation partner located in Lawson Lundell Vancouver office.

Alix Stoicheff  00:15

And I'm Alixandra Stoicheff an associate in the firm's Commercial Litigation and Dispute Resolution group based in the Calgary office. Thank you for joining us on LawsonInsight brought to you by Lawson Lundell LLP. On this episode, we will be speaking with Labor, Employment and Human Rights partner, Ritu Mahil on her recent blog post titled “Can you Fire a Rioter? Maybe…”

Mark Fancourt-Smith  00:34

Ritu is based in our Vancouver office and is an experienced negotiator, mediator and skilled litigator with a proven track record appearing at arbitration hearings at the BC Labor Relations Board, and all levels of court. She is also a former Vice Chair of the BC Labor Relations Board. Ritu welcome to the podcast!

Ritu Mahil  00:51

Thank you so much for having me!

Alix Stoicheff  00:53

Ritu thank you for joining us today. As no doubt most people are aware by now. On January 6, a group of rioters stormed the US Capitol, and a great deal of what happened was captured on video and broadcast over the news, including the identities of a number of the rioters. And while of course this happened in the US, Canadian lawyers and courts regularly deal with issues surrounding what to do when an employee engages in off duty conduct that reflects poorly on the organization. And Ritu, we thought this was a good opportunity to have you on today to talk about what an employer can do if they turn on the TV and recognize their employee or perhaps they're alerted to the fact that it's an employee by someone else who has on TV breaking the law or engaging in otherwise socially unacceptable behavior.

Ritu Mahil  01:36

Thanks, it's a really interesting issue. And it's sparked a bunch of questions and conversations from employer clients saying, look, if I turned on the TV, and I can recognize an employee of mine, or an associate of mine, and there they are, they're storming the Capitol, or they're looting the downtown Bay in Vancouver or whatever it is, because you know, everyone's got a camera. Everyone has a recording device on them. What can I do? Can I do anything about it? And I give the typical lawyer answer of “it depends”. Any employer can terminate an employee in a non-unionized context, as long as you provide reasonable notice and provide adequate severance situations where employers are able to terminate employee for cause does when you turn on the TV, and you see your employee engaging in an illegal or disreputable act, does that give you cause to terminate employee to the point where you do not have to pay severance or provide them reasonable notice and you can terminate their employment? What we look at is what is the legal test for off duty conduct that meets cause in these situations? And it's a four part test. One, does it harm their the company's reputation, or the product? Or does it render the employee unable to perform his or her duty satisfactorily, so it could be the face of the company? They are the engaging in something that is directly opposed to the platform? Or the marketing strategy of the company? Or three, does it lead to somebody else looking at this? Would it lead to their refusal or reluctance or their inability to work with either the company generally or that employee? One on one? Like if it's disgusting enough? Do they just say that's it? I'm not going to deal with them anymore? I'm not going to call them for, you know, whatever they were using them for? And for wouldn't make the difficult would it make it difficult for the company to properly carry out its function of efficiently managing its work and efficiently directing its workforce? So that's the four part test.

Mark Fancourt-Smith  04:00

Quick question on the third point you mentioned, which was, would someone seeing the employee doing what they're doing find it difficult to work with him? Is that a question both for potentially customers of the company but also other employees within the company?

Ritu Mahil  04:14

Yeah, what the courts look at and labor arbitrators is the test is the reasonable and fair minded person. Would it find that the off duty conduct had a real and material connection to the employer? Can you go back to work the next day and continue to rent out cars or sell suits to your customers when you know you're smashing and you're been seen on TV smashing into a store and spray painting things like are you representing the company in that point, and you're identified? Does everyone else who works with you does it make it difficult for your employer to continue that work with you?

Alix Stoicheff  04:58

And I guess the follow up on that point It may then make a difference what role the person has. So for example, if they are a teacher versus if there's someone who, you know, is working in the backroom of a storage company or something like that there may be different expectations about how they conduct themselves publicly in that respect.

Ritu Mahil  05:17

Yeah, sometimes, obviously, teachers and nurses, lawyers, doctors, we all have, you know, there's a lot of professional conduct issues and codes of conduct that come into play. But there's a couple of cases. recently, in the last few years, there were Burger King employees. One employee in particular, had posted a picture of himself on Instagram, lying naked on a bunch of hamburger buns. And that photo went viral. And that's not the CEO or the Marketing Director of the company, he is a minimum wage employee. But clearly identifying where he is wearing the little crown lying on the buttons. Then there were Domino's Pizza employees and Taco Bell employees engaging in pretty disgusting acts with foods that we don't need to get into. But these are extreme examples. But they raised questions of what can employers do to curtail their employees online activities? And the question that I often get from employers is, how can you control the content of what employees are doing when they're away from the workplace? So that brings me back, Alex, when you were talking about, you know, the riot at the US Capitol? So you know, there's mechanics of a social media policy reasons for having one. And what do you do if there's a breach?

Mark Fancourt-Smith  06:38

And Ritu just picking up on something from your previous answer is, what goes into a social media policy? And what specifically are some social media policies trying to accomplish?

Ritu Mahil  06:51

Yeah, a social media policy also can be you know, I've seen employers call it a social networking policy. It's a corporate code of conduct that provides guidelines for employees posting content on the internet, both during and after work hours. So it's regulating what they can and can't do, what they can post online, when they are representing the company or are going to be associated with a company. And by social media, of course, we mean, Facebook, Twitter, Instagram, Reddit, blogs, you name it, if you're using your real name, your real face, then you can be governed by your employer social media policy.

Alix Stoicheff  07:35

I'm wondering if you can just walk us through some of the key reasons why an employer might want to have a social media policy and what would go into it?

Ritu Mahil  07:42

Okay, first and foremost, it is the protecting the reputation of the company, the corporation, the individual that the employee works for. Secondly, it's controlling the online and social media presence, employers don't want to spend all the money that they do ensuring that their marketing teams craft the specific online presence, only to have that overtaken by the poster treats of their employees. So controlling your online presence and social media is a really key issue. Three, I'd say ensuring productivity in the workplace, that's an easy one. And I have to throw this in there as a labor and employment lawyer to help you establish just cause for breach of the social media policy that you have brought to the attention of your employees. So employee conduct that justifies discipline or discharge using You know, when it uses internet, email, cell phones, off duty conduct that involves social media posts, and making sure that the employees are aware of it and making sure that they're aware of the consequences of breaching those policies.

Mark Fancourt-Smith  08:52

Just a quick question is how far can a social media policy reach? and it's sort of it occurred to me when you were mentioning that you identification of the employee with the employer is key. And sometimes that's easier than others, the Burger King employee wearing the crown… bit of a giveaway, but say, for example, I decide to dress up in costume store in the art gallery. There's nothing intrinsic to what I'm doing, or my appearance or anything else in perhaps the social media posts that I documented myself doing it that identifies me as Lawson Lundell. But put another way does it matter who identifies you or how you are identified for the connection with an employer to be made?

Ritu Mahil  09:35

Someone can take your picture doing anything at any time, there is really no expectation of privacy when there are social media involved. So whether you're taking it posting it, whether your friends taking it with somebody, if you are dressing up, and you're going out in public, and you're doing something and someone says, hey, that's Mark from Lawson Lundell. I know him. That's all it takes and then all of a sudden someone starts to forward that email or that tweet or post, and everyone can see it. And, you know, it's not just your name, it's this is Mark from Lawson Lundell. All it takes is one person to identify what you're doing. And then one client of the firm of the employer of the company work for whatever it is to say to, you know, your higher ups, I found that really offensive. You know, I know this person, you know that I deal with them all the time, it says your receptionist at your car rental company, and now I feel intimidated or less likely to come in there. That's really all it takes. That, you know, again, the number one test is how does this harm the company's reputation or product. And if you're going to dress up protest, go out there make a public stance, you can expect to have your picture out there. And once it's out there, then it's out there.

Mark Fancourt-Smith  11:03

So Ritu, let me ask you this, let's say that, despite the best laid plans, and the best draft social media policy, an employee nonetheless goes out, does something egregious something visible, clearly in breach of the policy itself, but then you've got a publicity Firestorm engulfing the company, then what?

Ritu Mahil  11:25

I'm very lucky to work with a great team of people. So what I would do is I would call Alix, or I would call Jennie Buchanan and say, all right, I've got myself, I got my, you know, I've got a client in that needs your expertise. And we need a marketing strategy. And we need a communications plan. And we need someone to be the point person on this, and we need your direction. So I would call one of the two of those

Alix Stoicheff  11:53

And Ritu, that's really kind of you to say, and I think, in part why reducing that is, she's giving me a kind plug for a recent presentation that Jenny Buchanan and I did called “Responding to a crisis: Managing your legal obligations and developing an effective media strategy”. And to continue that shameless plug that's available on Lawson Lundell, his website on-demand. But some of the key points that an employer will want to make sure is that there's a clear chain of command and a clear media spokesperson in place in case something like this does happen. And of course, considering hiring a PR firm to assist with a response, particularly if it's a really serious incident. And also finally ensuring that external counsel are aware of any sort of key or hot button communications issues that this viral post raises for your organization, and, and in particular, ensuring that they know what your organization's media strategy is around those, just so that they can ensure that when they're drafting materials or appearing in court, that what they say is really aligned with what's in that policy.

Mark Fancourt-Smith  13:00

I actually don't have anything of my own to plug so I'll close here and say thank you very much for coming on the podcast today.

Ritu Mahil  13:06

Thanks, guys for having me. It was really fun to do this.

Alix Stoicheff  13:08

It was really great to have you on. For more information, please visit our website at lawsonlundell.com. You can also stay up to date by connecting with us on social media using the handle at @lawsonlundell. And by subscribing to the podcast on Apple, Spotify or Google Podcasts. Thanks for listening!