Social media in the workplace - is anything private?

If Facebook were a country, it would be the world’s third-most populated, with over 400,000,000 users. So it would not be news to anyone that the use of social media is growing: Socialnomics 2011 claims that over 50% of the world’s population is under 30 years old, and 96% of them have joined a social networking site. Further, the fastest growing segment on Facebook is 55- to 65-year-old females. However, what seems to come as a surprise to many employees is that what they post on social media sites can get them into all sorts of trouble - including termination of their employment.

Social media is simply another step in the evolution of communication. However, what used to be communicated one-to-one through word of mouth or telephone conversations, is now communicated many-to-many via social media sites. Coupled with the blurring of the line between work and home life due to flexible working hours and remote access, there is much confusion about what is public and private when it comes to social media.

Firstly, it is useful to identify what is meant by ‘social media’. Social media describes software tools that allow individuals or groups to generate content and engage in online conversations. Examples include blogs, wikis, tagging, online video, online photo sharing and social networking sites such as Facebook, MySpace and LinkedIn.

Social media forums offer a valuable marketing and information source for employers but also have the potential to expose employers to risk such as loss of and/or disclosure of confidential information, discrimination claims, unfair dismissal claims, reputation risk, vicarious liability, privacy breaches and defamation. There is no clear legislation that relates solely to social media in Australia. The law is a combination of existing legislation dealing with workplace rights such as adverse action, OHS and discrimination, and common law authority such as privacy, copyright and trademark laws as well as the building case law from Fair Work Australia and the courts.

There are a number of recent cases that have been before Fair Work Australia dealing with claims of unfair dismissal by employees who have been terminated due to their postings on social media sites. One of these involved an employee who had not been paid her holiday pay in cash, and her bonus had been smaller than expected. She then vented this fact on her Facebook pages with a status update that read:

“Xmas ‘bonus’ alongside a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWESOME!!!”

In her original findings (which were accepted by the full bench) the Commissioner commented that:

“Postings on Facebook and the general use of social networking sites by individuals to display their displeasure with their employer or a coworker are becoming more common.” She then went on to say that, “It is well accepted that behaviour outside working hours may have an impact on employment ‘to the extent that it can be said to breach an express term of [an employee’s] contract of employment”.

Another recent case involved an employee who had an issue with non-payment of his commission, and went on what has been described as an “expletive-filled”, “aggressive anti-work rant” on his Facebook page. The employee claimed that the postings were made from his home computer and out of work hours and therefore not relevant to his employment, however FWA rejected this submission and found that this did not make any difference - yet another example of the blurring of the line between work and private lives where social media is concerned.

FWA Deputy President Deirdre Swan found that it was inevitable that the employee who was being targeted would find out, regardless of the fact that she was not a “Facebook friend” of the employee, as there were 11 other employees who were Facebook friends and sure enough it didn’t take long for the supposedly private comments to become public.

The employer in this case did have a policy dealing with the need for employees to be courteous and polite, as well as harassment and bullying policies, although due to the extreme nature of the comments in this case FWA commented that common sense would dictate that this is unacceptable behaviour however you view it.

Interestingly though the employer did not have a social media policy - something we believe every employer should have- so that there would be no argument about what is or is not appropriate, and there is a clear understanding of the fact that social media sites are not only public but are also permanent. In our technological age social media is everywhere whether we like it or not, and the responsible thing for employers to do is to acknowledge that and manage it in the best way they can. The more progressive businesses are using social media to their advantage rather then trying to exclude it from the workplace - not only accepting that it is here to stay but using it to promote their business and expand their market which makes good business sense. The message for employees here is that social media use is encouraged but at the same time there are clear consequences in place if it is used inappropriately.

What should employees do?

For employees using social media the message is clear - whatever is posted on a social media site is public and permanent, regardless of whether you are at work or at home.

Employees need to ensure that they are mindful of this even though their intended audience may not include work colleagues or management: if they post a comment concerning their workplace or concerning their coworkers they are exposing themselves to the risk of disciplinary action or potentially termination of their employment. This is not to say that employees should avoid using social media - that would be not only unrealistic but would not be making best use of a medium that can be of benefit to both employee and employer alike.

What should employers do?

Social media presents exciting opportunities for employers, both large and small alike. Effectively and correctly used, social media can be harnessed to help promote your brand, engage employees and the wider community, track feedback and public sentiment about your business and can offer a platform that facilitates communication and participation like never before.

It is important, however, to be aware of some of the legal issues around use of social media, and be sure that you have addressed these issues in order to protect what is arguably your biggest asset: your brand. Employers should not only put clear boundaries around employee’s use of social media, but should encourage the proper use of social media and use it to their advantage.

The solution for employers is to ensure their suite of policies and procedures includes a social media policy which deals directly with such matters as:

• The nature of conduct that the employer seeks to protect itself against
• Who should such a policy apply to - for example: the entire business or levels within the business?
• The nature of control over social media use - for example: a total ban; limited use; total accessibility
• Authority limits or restrictions for use - for example: is permission required; content pre-approval; Who is responsible for such approvals?
• What can or cannot be discussed on social media forums?
• What logos, icons, ideas can or cannot be published on social media forums?
• What disclaimers or other information must be included when participating in a social media forum?
• The nature of behaviour that is acceptable or unacceptable
• When it is and isn’t acceptable to use or participate in a social media forum?
• Reporting any breach
• Consequences of breach

Further, employers should ensure that all employees acknowledge receipt of the policies and procedures and receive regular training on how they are to be implemented.

Social media is not the enemy here - it is our modern way of communicating and it is here to stay. The smart way to integrate social media into the workplace is to acknowledge it, work out how it can be used to benefit those in the workplace and set clear boundaries around it.

BlandsLaw

www.blandslaw.com.au,

*Christine Broad is a solicitor at BlandsLaw, an Australian employment law firm. BlandsLaw offers specialist risk management legal advice to corporations and businesses regarding their strategy, implementation and management of their employment law obligations. Along with their expertise in workplace law they are active users of social media and consider themselves well placed to advise companies on the many aspects of social media.