SOCIAL MEDIA, YOUR EMPLOYEES AND THE LAW – PART 2

1. Is the employee failing to meet deadlines or targets?
2. Has the employee’s quality of work diminished?
3. Have employees been made aware of your social media expectations?
4. Would the same behaviour be excessive if it were taken offline? (For example, reading the paper, using the telephone, coffee breaks)

1. Defamation
2. Harassment/Victimisation
3. Disclosure of Confidential Information

1. Does the conduct cause serious damage to the employment relationship?
2. Is the conduct inconsistent with the employee’s obligations as an employee?
3. Was your business actually identified, or are there any obvious links between the employee and your business?
4. Was the post public, or did it have limited visibility?
5. If this happened in the real world, or if this came to your attention via alternative means, what would you do?

In December 2011, we explored the use of social media to build your business, and some of the legal risks associated with intellectual property and brand management. Now we’re turning the tables to have a look at the use of social media by employees, and how to manage any problems that might arise.

Employer’s rights have not changed with the advent of social media, and from an employment perspective, those rights should be approached as a new form, not as a new regime. As smart phones and tablets become commonplace, a workplace’s ban social media use may not have the effect you might be after as an employer. Employers should focus on how they can reasonably (and legally) restrict the use of social media by employees that might damage their business.

On the Clock

Managing the productivity of an employee is difficult, although it is possible to monitor and track an employee’s use of social media. It should however be remembered that an underperforming employee is a liability to your business irrespective of the root cause, and should be treated as such.

When considering discipline for social media use at work, an employer should consider:

1. Is the employee failing to meet deadlines or targets?

2. Has the employee’s quality of work diminished?

3. Have employees been made aware of your social media expectations?

4. Would the same behaviour be excessive if it were taken offline? (For example, reading the paper, using the telephone, coffee breaks)

Off the Clock 

We’ve all heard horror stories about how an employee’s non-workplace use of social media may have a workplace impact. Australian courts have generally been hesitant to allow an employer to dismiss an employee as a result of after hour activities.

An employee can be disciplined where for “off the clock” conduct only where the conduct complained of is of such gravity or importance as to indicate a rejection of the employment contract or employment policies where the conduct is closely related to the practices of the business.

Not all online behaviours will meet this standard, but gross misconduct could and social media opens doors to areas of potential gross misconduct such as:

1. Defamation

2. Harassment/Victimisation

3. Disclosure of Confidential Information

Discipline

When disciplining employees in respect of social media use, employers should be careful not assume that online transgressions are grounds for dismissal. Remember, due diligence is still necessary. Before you consider disciplining or dismissing an employee, stop to consider:

1. Does the conduct cause serious damage to the employment relationship?

2. Is the conduct inconsistent with the employee’s obligations as an employee?

3. Was your business actually identified, or are there any obvious links between the employee and your business?

4. Was the post public, or did it have limited visibility?

5. If this happened in the real world, or if this came to your attention via alternative means, what would you do?

When moving to discipline an employee, you should always consult your employment contract. If a process of discipline is not already in place and an employee’s actions fall short of gross misconduct, then other options need to be considered as to how the situation should be addressed.

Summary

Social media is now a fact of everyday life, and is becoming a big part of how businesses go to market and promote their products and services. As with all new phenomena, a number of legal risks are present for organisations. Employer’s rights and obligations remain the same, and employees should be expected to behave online as they do offline.

Most risks associated with employee use of social media can be effectively controlled through education and the development a strong but flexible social media policy.

A social media policy that makes clear your expectations, and effectively ties these expectations to the goals and priorities of your organisation is an effective safeguard against legal risks.

If you would like assistance training your executives on how to manage the use of social media in your organisation, or if you would like some help with the development of a social media policy, or need any further information on this topic, please contact Richard Prangell on  (02) 8239 6500 or richard.prangell@kreissonlegal.com.au