employee owes a duty of good faith and loyalty to their employers. This prevents employees from acting to the detriment of their employer. In Canada, the legal test of good faith in the employment context requires the employer to show that the employee’s off-duty conduct harmed the employer’s reputation or product. If it is found that such conduct has caused such harm or has rendered the employee’s employment with the company untenable, then action against the employee may be taken.

Listed below are some of the items that restaurants will want to take into consideration when drafting an employee specific social media policy. Some of these headings will apply to conduct while on and off–duty.

Confidentiality

It is imperative that an employee social media policy contain sufficiently strong language with respect to confidentiality in order to protect the restaurant’s confidential information, trade secrets and other internal or proprietary information. You may consider limiting which employees can access certain types of information. Furthermore, you may want to educate your employees on the dangers of online disclosures, direct and inadvertent. This is a particular concern for publicly traded companies which can face serious regulatory penalties for non-compliant disclosure of certain information, not to mention the impact this may have on the share value. The duty to maintain confidentiality is one that transcends the regular workday.

Reputation/brand control

Restaurant owners must also realize that the conduct of their employees on these social media outlets may have an effect on the reputation of the brand. A policy must include language that restricts a certain type of behaviour while not infringing on freedom of speech and expression rights.

Restaurant owners that seek to terminate employees for online conduct whether during or outside working hours can only do so if three criteria are satisfied:

1. The conduct must have caused serious damage to the employment relationship.
2. The conduct must have caused damage to the employer’s interests.
3. The conduct had to have been incompatible with the employee’s duties as an employee.

Controlling Internet usage – managing productivity

Many employees spend a large portion of their workdays on social media, which can cut into their productivity. Further, the more time an individual spends on social networking, the greater the chance that an online misconduct can occur. Restaurant owners should develop policies and monitoring systems that restrict the amount of time that employees are engaged in these types of activities. The more realistic policy would be to permit the reasonable personal use of these media in the workplace.

This is only a broad sample of some of the elements which you should consider for your restaurant’s social media policy. As policies will vary by each business’s marketing strategies, there is no one-size-fits-all social media policy which can be provided.  Accordingly, make sure that you work with your legal advisors to draft and enforce a social media policy that works for you.

See also: 

• Tapping the power of your restaurant’s employees through social media
• Social media marketing 101
• Eight items for franchisors to consider when drafting a social media policy

About the author

Chad Finkelstein is a franchise lawyer at Dale & Lessmann LLP (www.dalelessmann.com) in Toronto and can be reached at cfinkelstein@dalelessmann.com or (416) 369-7883.