A trend has emerged on social media in recent months, in which employees have recorded their termination meetings and then shared it online. For example, millions of people recently viewed a nearly ten-minute long video on TikTok of an employee being dismissed. While this trend need not be sensationalized, employers should consider the enhanced ease of filming a termination meeting within the context of a remote or hybrid workplace.
The potential for reputational damage faced by employers who are recorded during termination or disciplinary meetings is clear. However, organizations should also be aware of the legal risks stemming from a termination meeting that is posted online.
Best Practices for Employers
The best way for employers to avoid a disgruntled former employee sharing a recording on social media is to prevent them from filming the termination meeting altogether. However, if an employee records a termination meeting (or another meeting) without the employer’s knowledge, the employee is not necessarily contravening the Criminal Code provision that makes it illegal to record a private conversation, as long as they are one of the parties to the conversation.
Employers can contract out of this one-party consent exception by implementing policies that prohibit recordings in the workplace without the informed consent of all participants. Such policies should clearly state that doing so could lead to discipline up to and including termination of employment. Clear policies that are communicated to the team establish a workplace expectation that this conduct is unacceptable, and in doing so, proactively create a chilling effect to deter employees from recording meetings.
Despite best efforts, it remains possible that an employee may record a termination meeting and post it online. To minimize the consequences associated with this trend, employers should conduct termination meetings in a manner that does not expose them to reputational and legal risks. For example, employers can face significant liability if an employee records their employer making a statement during a termination meeting about the employee related to a protected ground of discrimination under the Ontario Human Rights Code. Similarly, employers who engage in bad faith conduct or make false representations about an employee’s termination entitlements during a termination meeting may be ordered to pay increased damages by an adjudicator.
Accordingly, prudent employers should be well-prepared for termination meetings by drafting a “script” that includes a summary of points to cover, and reminders about what types of discussions and comments to avoid. Conducting a termination meeting with talking points can benefit employers and managers, as these preparatory notes ensure important information is conveyed to the employee. For example, it is wise for employers to include a prompt in a termination meeting script as a reminder to fulfil their obligation to provide the dismissed employee with a written confirmation of their termination. A thorough termination meeting script can also prevent employers from making statements which are later relied upon by employees in subsequent claims against the organization related to wrongful dismissal and/or discrimination, as discussed above. When drafting a script to use during termination meetings, employers should also include a question to the employee confirming whether they are recording the meeting and reminding the employee that recordings are strictly prohibited without the employer’s knowledge and consent.
Lastly, employers should conduct the termination meeting with two employer representatives present—one to lead the meeting, and another to act as a witness and take notes. While your workplace policies may prohibit recording the meeting, it is still prudent to document the meeting in a manner that can be relied on later to disprove potential claims made by the employee against the organization.
Employer Takeaways
While employers should not be overly fearful of this trend, organizations can mitigate against the risks that could result from an employee filming their termination meeting and sharing it online by engaging in best practices, which include:
- Prohibit Workplace Recordings: To proactively reduce the risk of a termination meeting being posted on social media, employers should set the expectation that recordings in the workplace are prohibited by implementing workplace policies to that effect.
- Act Like Someone is Watching: Regardless of whether the meeting is recorded, employers should not engage in discriminatory, false, or bad faith conduct during a termination meeting, as this can introduce significant reputational and legal risks.
- Prepare a Termination Meeting Script: A well-drafted script can help employers avoid common pitfalls, while also ensuring they discuss essential information during a termination meeting.
- Bring a Witness: While you may prohibit recordings, it is still wise to have two employer representatives attend the termination meeting for the purpose of acting as a witness and notetaker. If an employee makes a claim against their former employer, contemporaneously drafted notes can be relied upon by the organization to weaken the employee’s position and reduce the employer’s liability.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.
