Social Media – and when does it become a work issue?

Social Media – and when does it become a work issue?

Mark Zuckerberg of Facebook has recently found himself in trouble over breaches of privacy involving data gathered through Facebook. There’s no doubt that social media is challenging traditional notions of privacy.  

For employers, social media can certainly be a powerful marketing and communication tool. However, there are also plenty of potential risks, such as: 

  • A breach of your organisation’s information or individuals’ private information 
  • Public criticism or complaints about your organisation 
  • Online communication between employees that is bullying, discriminatory or of a sexual nature 
  • Loss of productivity 

Fair Work is dealing with increasing numbers of cases involving social media. One of the first of these cases was about a disgruntled employee who took to Facebook to complain about her holiday bonus and pay.  

Her page was set to private however a third party informed her employer. Her employment was terminated for several reasons including the post, and she took her case to Fair Work. Whilst her termination was not upheld the Commissioner did find that a Facebook post even if made outside hours and intended to be private could be the subject of disciplinary consequences. 

At the time the decision was considered big news because it highlighted that the delineation between home and work was no longer so clear. However, in recent research by Macquarie academic Louise Thornthwaite, she suggests that the case law has evolved and Fair Work has become more lenient in cases where employees could expect reasonable privacy online. 

Inanother case employment was terminated after an employee complained to a relative on Facebook about her changing employment status. The FWC found that her remarks did not harm the business, and an employee has a right to complain about their employment rights and their treatment at work. 

Another recent case demonstrates that the Commission will look at the employee’s record in determining whether termination is appropriate even where the conduct is inappropriate. On employee was recently dismissed after tagging his co- workers in an offensive Facebook post. The Commission determined that the dismissal was ‘harsh, unjust and unreasonable’ as that employee’s record was otherwise unblemished and he had worked for the organisation for a long time. Interestingly they declined to reinstate him but awarded him compensation. 

Without a doubt social media is blurring of lines between work and private life and what constitutes the workplace now extends beyond the four walls of a building.  And, with so much complexity, what does this mean for employers? What should employers be focused on? 

HR Central believes very strongly ensuring every business has a suite of policies that outlines expectations and codes of conduct around areas that can be open to interpretation or may have an element of risk attached to them.   Social Media is one of these areas.

A formal Social Media Policy or at the very least, clear guidelines to your employees about their use of social media is essential. Employees should be clear that the guidelines apply to posts made outside of hours or on forums they may consider ‘private’ such as Facebook. A Social Media policy that is agreed and signed off on by employees can help support a business if an employee does use Social Media inappropriately.  The FWC recently upheld the dismissal of a Ports Worker who sent co-workers a pornographic video through the Facebook Messenger App out of hours finding that his actions had ‘spilled into’ the workplace. In that case the employer had very clearly stipulated policies around sexual harassment.

If you would like a Social Media Policy template for your workplace – contact HR Central 1300 717 721

Who can help 

Encourage open discussion about changes in the Social media space. Enlist and empower the Millennials in your workplace to help with developing policies and guidelines and to keep your business ahead of the curve. 

Ensure that employees have access to people who can guide them and can answer any difficult questions. Regularly check your organisation’s social media sites to ensure that content being posted is appropriate. 

Privacy and Confidentiality 

Provide clear guidance to employees about the protection and use of your organisation’s private information. Last year I was involved in a case involving a young Sales executive who was dismissed after he posted a message on Facebook about his busy day and attached a list of the clients he was seeing. He had no idea this was inappropriate. Encourage employees to appropriately acknowledge sourced content and respect copyright. 

Bullying and Harassment 

Connect your Social Media Policy to your organisation’s existing policies regarding Bullying and Harassment, Sexual harassment and discrimination. Comments of a racist, derogatory, defamatory or sexual nature on social media should not be allowed. 

Business v Individual 

Make sure that your employees understand the extent of their authority to represent your business on social media. Give guidance to employees on how to distinguish between posts made on behalf of the company and posts made in their capacity as individuals. Provide them with appropriate language for example: “the views expressed in this post are my own and do not represent those of my employer’ 

Productivity 

It is not unreasonable to provide guidance to employees about personal use of social media during the working day. One employer said to me recently that he thinks of time out on social media as the new ‘smoko’ and so he is prepared to demonstrate leniency within specific time limits which he has articulated! 

Social media has changed life as we know it forever.  Smart employers will embrace Social Media and accept it’s place in the world, but have strategies and communication in place to manage its impact in the workplace.

If you would like a Social Media Policy for your workplace – contact HR Central 1300 717 721

 

Sarah Tidey

Sarah Tidey is a former lawyer who specialises in HR and workplace dispute resolution.

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