What do you do when an employee’s off-duty social media posts become a complaint at work?
Off-duty social media conduct has become a common source of concern for employers because the online, off-duty, world is no longer completely separated from the workplace. Whether it is a disparaging comment about management, a discriminatory remark shared publicly, or private messages that surface later, the consequences for the workplace can be significant. For business owners and HR professionals, investigating off-duty conduct requires a disciplined and lawful approach. Importantly, a disciplinary investigation is not the same as a harassment investigation. The goals, processes, and obligations are distinct. In this blog, SWL outlines the best practices for conducting a fair and effective disciplinary investigation when an employee’s off-duty online activity raises workplace concerns.
A brief summary of the law
Canadian law recognizes that employers may discipline employees for off-duty conduct—but only if there is a sufficient connection to the workplace. This could include:
- Harm to the employer’s reputation
- Disruption of workplace relationships
- Violation of internal policies (e.g., codes of conduct, confidentiality, or anti-discrimination policies)
- Conduct that impairs the employee’s ability to do their job
Understanding the Difference: Disciplinary vs. Harassment Investigations
A harassment investigation is typically a statutory obligation, triggered by a complaint or awareness of potential harassment under occupational health and safety or human rights laws. It must meet specific procedural and reporting requirements set out in occupational health and safety legislation.
A disciplinary investigation, by contrast, is employer-driven. It is initiated when the employer believes that an employee may have engaged in misconduct—such as violating a workplace policy or acting in a way that undermines the employment relationship. The purpose is to determine whether discipline is warranted, and if so, what level of discipline is appropriate.
Step-by-Step Guide to Conducting a Disciplinary Investigation
1. Receive and Document the Concern
Whether you become aware of an issue through a complaint, an anonymous tip, or external reports, document the source and content of the concern. Identify what exactly is alleged—what was said or posted, when, and by whom.
2. Secure and Preserve Evidence
Act quickly to collect relevant digital evidence before it is deleted or altered. Screenshots, URLs, time stamps, and device metadata are useful. Save content in its original format if possible. Verify that the material is authentic and publicly accessible, especially if you plan to use it in the disciplinary process.
3. Assess the Relevance to the Workplace
Before launching a full investigation, determine whether there is a nexus between the conduct and the employment relationship. Ask:
- Does the conduct violate any workplace policy?
- Does it affect co-workers or clients?
- Is the employee identifiable as working for your organization?
- Has it caused reputational harm?
If the answer to any of these is “yes,” there is likely a legitimate basis to proceed.
4. Interview the Employee and Give Them an Opportunity to Respond
Interview the employee in question. It is not necessary to give the employee a statement of allegations in advance of a disciplinary interview. You put the alleged misconduct and evidence to them, and ask for their response in the interview. Give them a fair opportunity to explain or contextualize their conduct. This is an essential component of procedural fairness, a principle affirmed by Canadian courts and arbitrators.
5. Assess Credibility and Mitigating Factors
Once you have collected evidence, you must evaluate the information objectively. Consider factors like:
- Was the conduct intentional, reckless, or a lapse in judgment?
- Has the employee shown remorse?
- Is this a first offence?
- How public was the conduct?
The employer must weigh the seriousness of the incident and the proportionality of any response.
6. Make a Reasoned Decision
Based on your findings, determine whether discipline is warranted and, if so, what form it should take—verbal warning, written warning, suspension, or termination. Look to your discipline policies for guidance. The decision must align with your policies, be consistent with past practice, and be legally defensible. Have a call with your SWL lawyer to make sure you have the necessary evidence to support disciplinary action.
7. Document the Entire Process
Maintain a complete file, including all evidence, interview notes, correspondence, and the rationale for the decision. Good documentation will support your actions in the event of a grievance, human rights complaint, or legal challenge.
Social media has changed how we work, communicate, and relate to one another. For employers, this means adapting disciplinary investigation practices to new forms of expression and interaction. Off-duty conduct may be off-site and after-hours, but that does not mean it is beyond the reach of workplace policy or law.
A disciplinary investigation can protect your workplace culture and reduce legal risk, but it must be guided by fairness, proportionality, and a clear understanding of what the law allows and does not allow.
If you need guidance on a specific case, or assistance developing policies and training for your organization, contact your SWL lawyer.
