This article examines the pervasiveness of social media and its impact on the employer-employee relationship in Brazil. In particular, to what extent can behavior outside of working hours affect an individual’s employment?(1)
Businesses have an indisputable role in promoting the advancement of inclusion and diversity in modern society. Therefore, establishing a position on such an issue becomes increasingly important in determining market value.
As such, it is clearly unacceptable that employers and employees behave in a manner inconsistent with the values and principles of their company.
As the boundaries between public, professional and private life become increasingly blurred, coupled with an increasingly low public tolerance for certain types of conduct, bad behavior by employers and employees can seriously damage reputations. and business trade.
A significant challenge in this context is the handling of day-to-day situations and the unique combination of factors to consider in each given case of online misconduct.
For example, is a racist post on an individual’s social media a cause for dismissal? What if this or these message (s) were created before the start of the working relationship? What if the social network account is not public? If the account is private, what if the post can still be seen by colleagues or clients and may be offensive?
Another question to be resolved is whether penalizing bad behavior and opinions outside of working hours can violate employees’ right to speech and privacy.
Many companies in Brazil have internal policies that require employees to emphasize that their views on social media are not expressed on behalf of their company.
However, the inclusion of wording that attempts to separate an individual from their employer in an offensive position is not enough to avoid negative consequences for the employee, other members of the workforce and the company she does. -same.
Businesses are vectors of change and can be leaders of social responsibility. Accordingly, one must consider what message is sent to other members of the company and to the public when an employee responsible for a harmful position is not fired or sanctioned.
However, there is no standard solution to this and companies will need to establish:
- the nature of the offensive content;
- whether it was aimed at a particular person or group;
- when the message (s) were published;
- if it is an isolated event;
- how they learned about the content; and
- if they already have a policy on this.
Brazilian companies can take steps to educate employees to avoid further inappropriate behavior and impose disciplinary procedures or establish improvement plans. While termination for cause in these circumstances can be controversial, costly, and would likely trigger litigation, companies are generally free to terminate the employment of individuals as they see fit. Furthermore, the courts have upheld the dismissal for cause when employees post content on social media deemed defamatory of their employers.
While there are less harsh ways to deal with online misconduct, businesses should also consider the cost of inaction.
For more information on this topic, please contact Patricia barboza Where Maury Lobo at CGM Advogados by phone (+55 11 2394 8900) or email ([email protected] Where [email protected]). The CGM Advogados website can be accessed at cgmlaw.com.br.
(1) TThis article is the second in a two-part series on the role employers can play in managing employee conduct online. For the first article in the series, please see “Social networks and denigration of employers: to like or not to like? “