What’s new in the human resources world for employers?
There is an emerging trend of employees surreptitiously recording and posting their termination meeting on social media. Recent videos have gone viral as part of the growing trend that has captured headlines in recent months. Should employers be concerned? The short answer is yes.
Termination meetings are intended to be private for various obvious and less obvious reasons. As an employer, there are concerns of maintaining the individual’s privacy; however, from a larger vantage point, there are potential reputational and legal risks to be mindful of. A termination meeting is a private affair for both the employer and employee, as even the most “successful” termination meetings can be fraught given the working relationship is being concluded between the employee and employer.
In terms of legal consequences, it is important to know whether an employee is recording a termination meeting, as, even if it does not land on social media where there are obvious optic considerations, employees may attempt to use this evidence within their legal dispute. There is recent case law where Ontario courts have relied on surreptitious recordings as evidence in wrongful dismissal proceedings.
In Teljeur v. Aurora Hotel Group, 2023 ONSC 1324, the employee had surreptitiously recorded his termination meeting. The Court requested a transcript of the recording and used the transcript to form part of the evidentiary basis to award punitive damages against the employer, noting that the recording “highlight[ed] a number of disturbing aspects about the plaintiff’s termination.”
What can employers do given this recent trend?
It is important to get ahead of this trend and create expectations from the front end of the working relationship. Employers are entitled to capture an employee’s ability to record or not record company meetings in their various workplace policies, as well as creating clear expectations when it comes to what employees can and cannot post on social media.
Further, as a best practice, our advice is to always create clear expectations when commencing a termination meeting regarding any potential recording of the meeting. This may include reminding the employee of their relevant confidentiality obligations and ensuring the employee is aware that they are welcome to take notes of the meeting (not record), as you, as the employer, will be doing the same.
Given this recent trend, we generally advise our clients to keep the following in mind when conducting termination meetings:
- Be mindful of the setting of the termination meeting. Many termination meetings are now held virtually, if that is the case, set clear expectations regarding any recording of the termination meeting, as it is much easier for an employee to conceal a recording device in a virtual termination meeting.
- Set clear expectations. Make sure the employee is aware within the termination meeting of what you expect in terms of recording or taking notes of the termination meeting. Speak with your HR professionals to ensure you are prepared for any feedback you may receive in real time regarding this expectation.
- Revise workplace policies to address recordings in workplace meetings and/or social media posts. Set clear expectations regarding recordings and the ability of an employee to post content related to the company on social media. We suggest creating or amending your existing workplace social media policy and/or any relevant electronic monitoring policy.
- Stick to your script. In the termination meeting, have talking points prepared. Do not make any guarantees beyond what has been included in the termination letter. It is acceptable to have points to take away from the meeting, so that you have the time to gather the relevant feedback and prepare a carefully crafted response to any employee questions.
- Conduct yourselves under the assumption the employee may be recording. Regardless of setting clear expectations during a termination meeting, an employee may still surreptitiously record a termination meeting. We advise our clients to always conduct themselves in a termination meeting, as if it may be recorded, this includes straying from providing any additional guarantees, maintaining professionalism throughout the meeting, and sticking to the script as outlined above.
- Have a buddy. We generally recommend having two people in attendance from the company in termination meetings. Among providing additional support in a termination meeting, this also makes it possible for one person to take notes of the meeting.
- Confidentiality obligations. The termination meeting can also be used as an opportunity to remind employees of any post-termination confidentiality obligations they may have.
After the termination meeting, we also recommend employers have strong confidentiality clauses included in any enhanced severance package being offered. This can provide additional protection.
Given this recent trend, our advice to Canadian employers is to get ahead of the trend in a proactive manner to ensure they are best prepared should any employee engage in behaviour to participate in this trend.
If you have any questions about an employer’s legal obligations in these circumstances, please reach out to Simmy Sahdra or any member of Dentons’ Employment and Labour Group.
