The rapid rise of social media has changed the way we interact with each other in an unprecedented way. In Australia 62% of people use social media and the trends are rising. This has been a phenomenon the law has had to very quickly and reactively catch up with.
Whilst there is no doubt as to the popularity and commercial benefits of social media in the modern business world, the challenge for employers remains regulating its use in the workplace to manage loss of productivity, minimise exposure to discrimination, bullying and harassment claims and ensure protection of confidential information and business interests.
The Blurry Line…..
The significant challenge for employers in regulating the use of social media is the blurred boundaries between work life and outside of work activities. Historically, Australian Courts have been reluctant to allow an employee to be dismissed for activities outside work hours. Generally employers have no right of control or regulate activities not connected with employment unless they are in breach of an express term of the employee’s contract of employment. Specifically, the conduct must be of such gravity or importance as to indicate rejection or repudiation of the employment contract by the employee (Rose v Telstra Corporation Limited  AIRC 1592).
The position at law essentially reflected the separation of work and private life. Technology and social media have complicated this position as much of an employee’s life may now carried around in a smart-phone often supplied and used for work purposes but with access to the internet and social media applications containing personal movements, developments and other information. Colleagues and friends often become friends on Facebook or followers on Twitter and it is increasingly difficult to determine where an employee’s work ends and personal life begins. The use of GPRS location settings to “check in” to places or Facebook or other smart phone applications creates another evidentiary source for employers (with appropriate policies workplace surveillance policies) which may lead to disciplinary action if for example they can establish an employee is not where they say they are during work hours or out and about when they have called in sick.
Business or Personal Contact?
Twitter and LinkedIn have been increasingly used to establish, build and maintain business relationships. The question however arises whether it is the employer or the employee owns the account. Where an employer requires an employee to be on social media employer policies should make it clear the account remains the property of the employer at all times, require that logins and passwords be provided to the employer and that the account be handed back if the employee’s employment ceases for any reason.
Where the employer does not require the employee to be on social media but the employee is and gains contacts through the employer the situation becomes murkier. Whilst the law on this has not yet developed in Australia, this issue was considered in the UK High Court case of Hays Recruitment v Ions & Exclusive HR (2008) where an employee used his LinkedIn network to approach Hays’ clients for his own rival agency. The employee claimed that the contacts were not confidential on LinkedIn however the court held that the property, being the contacts, was Hays’ and allowed disclosure in relation to a possible claim by an employer against an employee. The case was significant in that it decided that confidential contact information remained the employer’s property even when used in a public sphere such as LinkedIn.
Given the prevalence of LinkedIn in Australia, now labelled as the “business card of the modern professional”, employers may be guarded about prohibiting its use in the modern business world. Rather, employers should develop policies to minimise risk and exposure arising from its use. For example policy provisions may require LinkedIn account settings are set to hide contacts, prevent employees advertising intention of finding a new job and create other conditions of use during employment and for management of contacts acquired during employment on cessation of employment. The enforceability of many such provisions is yet to be tested in Australian Courts but the existence of such provisions, if only for “paper value”, certainly places an employer in a better position than it would be in without such policies. Further, these issues must be addressed in employment contracts which are enforceable post cessation of employment given policies and procedures are only enforceable in the course of employment.
Guidelines for implementing Social Media Policy:
The necessity of employers to develop and implement social media policies “in the current electronic age” was emphasised by Fair Work Australia in the unfair dismissal matter of Stutsel v Linfox Australia Pty Ltd  FWA 8444 where an employee’s termination was held to be unfair following posts made on social media about colleagues and superiors in circumstances where Linfox did not have a social media policy outlining what was permitted and/or prohibited.
Following are guidelines to assist employers with the implementation of a Social Media Policy:
1. Evaluate the benefits and risks of various types of social media in a consultation with employees.
2. Include in the Policy:
a) definition of social media
b) the nature of control the employer has over specific sites
c) reputation protection provisions
d) privacy, confidentiality and business security provisions, for example, relating to “visibility” of connections.
e) “what not to do” and cover issues such as:
i. discrimination, bullying and harassment;
ii. professional boundaries and damage to business’ reputation; and
iii. representations and misuse of business information.
3. As social media is constantly changing policies must be constantly monitored, reviewed and kept up to date to reflect developments as they affect the business from time to time.
4. Train/ educate employees on the Policy as amended from time to time including how it applies in conjunction with other policies including:
a) Anti-Discrimination, Bullying and Harassment Policies
b) Grievance Procedures
c) Email and Internet / Information Systems Policies and Procedures
d) Code of Conduct
e) Counselling and Discipline Procedures
For assistance in developing a social media policy tailored to your business needs, call the Matthews Folbigg Lawyers Workplace Solutions team on 9635 7966.
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