Social media presents endless opportunities for business and professional development. Online platforms can be used by employees to connect better with their work colleagues and customers, and to assist with the positive communication of their employer's products and business. However, the use of online platforms by employees can blur the line between personal and employment-related activities, and pose significant and diverse risks to an employers' operations, reputation and ultimately their bottom line. These risks potentially include reputational damage, disclosure of confidential and commercially sensitive information, work health and safety issues relating to cyber-bullying and sexual harassment, and the solicitation of key customers, suppliers and employees.
In the last few years there have been a number of high profile matters involving employees and social media use, from employees contesting the termination of their employment as a result of posting offensive content and messages, employees using social media to harass and bully colleagues, through to employees being bullied in turn through social media by third parties.
Against that background, it is clear that all employers must turn their minds to how best they can capitalise on the endless business opportunities presented by social media, whilst managing those diverse risks.
Developing a strong social media policy
The starting point for all employers should be to have in place a strong and effective social media policy.
That social media policy should be clear on the permitted and prohibited uses of social media, both during and outside of work hours, and put employees on notice that inappropriate use of social media may result in disciplinary action including possible termination of their employment.
The top ten priorities for strong and effective social media policies should be:
- explaining the risks that can arise through the use of social media and the reasons why having a policy is necessary;
- clarifying the permitted uses of social media during work hours and/or using the employer's resources. This will include when employees are allowed to access social media at work (if at all), when such access is permitted - for example, during an employee's lunch hour or while the employee is on a break, or at any time - and what will be considered to be excessive use;
- confirming that the policy applies in respect of social media use by an employee outside of work hours where that use impacts on the employer or the workplace, including by an employee publishing comments which are referable (whether directly or indirectly) to the employer, its products, other employees, customers, partners, suppliers or competitors;
- clarifying prohibited uses of social media, such as an employee engaging in online conduct which may constitute unlawful discrimination, defamation, bullying or harassment. There needs to be careful consideration of how this part of the policy links to an employer's other existing policies covering those issues. Consideration can also be given to requiring employees to inform their employer when they become aware of any potential breach of the policy by another employee - unlike in other jurisdictions, this concept of "dobbing in" a colleague can be difficult to promote in Australian workplaces;
- confirming that social media use must be consistent with an employee's obligations to comply with all applicable laws, including to not make any comment that may be misleading or deceptive in trade or commerce (in breach of Competition and Consumer Act 2010 (Cth)), and to not disclose any market sensitive information prior to disclosure by the employer (in breach of insider trading laws);
- reminding employees of their obligations in respect of the employer's confidential information and intellectual property, and privacy, copyright and plagiarism issues more generally;
- where an employee is subject to a workplace investigation, in addition to requiring an employee to generally assist with that investigation, specifically directing an employee to preserve and not delete relevant social media content, and to provide their employer with reasonable access to that content for the purposes of the investigation;
- specifically providing the employer the ability to direct an employee to remove or delete prohibited content;
- expressly stating that breach of the policy may result in disciplinary action up to and including termination of employment; and
- directing an employee on how they can notify their online connections of their departure from their employer and their acceptance of a new role, and confirming that the inappropriate use of those social media connections can constitute a breach of any post-termination restrictions on soliciting clients.
Keep up with the times
Of course, with the social media space always rapidly evolving, it is difficult for employers to predict all of the types of issues that may arise through social media use. However, the best defence is always a good offence. Social media policies should be drafted so as to capture new online platforms or channels as they emerge, including all forms of social and professional networking sites, blogs, message boards, podcasts, file and content sharing sites, and virtual worlds or games. A social media policy should be a "living document" which is subject to constant review and updating as required.
As with all workplace policies, implementing a social media policy without properly inducting new employees and ensuring that existing employees are periodically trained on the contents of the policy will significantly undermine the policy's effectiveness and ultimately the ability of an employer to rely upon the policy when considering disciplinary action against an employee for breach.
For employees whose role requires them to actively use social media platforms, such as those in marketing and business development roles, employers should also consider whether those employees require specific training on appropriate use of social media. That training could cover permissible content, social media etiquette and guidelines for engaging with customers, suppliers and readers at large in a manner which is in line with the employer's social media strategy.
Consistency is key
If the single biggest mistake employers make in relation to employees' use of social media is not having social media policies in place at all, then perhaps the next biggest mistake is having a policy but not applying it consistently.
Where an employer either does not have a social media policy, or has a policy but has not applied it consistently, it may be difficult to then take disciplinary action for unacceptable misconduct. Employers may face exposure to potential adverse action or unfair dismissal claims for any such disciplinary action taken.
Accordingly, employers need to "take a view" on how they will deal with particular issues relating to social media use, and apply their policies consistently. For example, employers should consider whether they will require employees to delete any "contacts" they have made online purely as a result of their employment, or impose non-competition/non-solicitation restraints in respect of the employee's dealings with those contacts, on the cessation of their employment (and if so, how).
Respond swiftly to breaches
Employers can also make the mistake of not moving quickly to take disciplinary action where employees' conduct online is unacceptable or in breach of a social media policy. Delays in taking disciplinary action can also limit the effectiveness of any remedial actions taken. Any information published online should essentially be considered a permanent record. As such, if an employee leaks sensitive business information, any delay in having that content removed or corrected will exponentially increase the risk of that information falling into the wrong hands or legal risks arising.
On the other hand, taking decisive action to discipline employees for unacceptable social media use can send a strong signal to other employees about expectations surrounding their social media use and the significant consequences of misuse.
Policy or contract?
Workplace policies, including social media policies, should generally not form part of the contractual terms and conditions of employment. It is best practice for workplace policies to sit alongside employment contracts as a separate instrument and to be clearly stated to be subject to review and change at the employer's discretion. Otherwise, if an employer breaches a policy which is found to form part of an employee's terms and conditions of employment, the employee may have a claim against the employer for breach of contract.
Employers should also ensure that each of their workplace policies work together and operate consistently to maximise protection for the business. For example, the social media policy should tie in with, and complement, policies on workplace bulling and harassment, and protection of confidential information.
Privacy and surveillance considerations
Computer surveillance can be a useful tool for employers in seeking to protect their sensitive business information and in monitoring employees' online conduct. Importantly, employers seeking to implement computer surveillance programs should be aware that a failure to notify employees of computer surveillance may amount to a breach of workplace surveillance and privacy laws. This in turn could prevent the employer from relying on evidence retrieved from online social media in any employment litigation. For example, the Workplace Surveillance Act 2005 (NSW) contains various requirements which must be met prior to undertaking computer surveillance, including notifying employees of that surveillance and an employer conducting that surveillance under the terms of a computer surveillance policy.
So what next?
Developing and implementing clear, comprehensive social media policies can help employers ensure that employees' use of social media for work-related activities is productive and adds value to the employer's clients, suppliers and other stakeholders, whilst minimising the risks to the employer's operations and reputation.
Like most workplace policies, there is "no one size fits all" approach, and an employer needs to consider carefully what social media use policy best serves their needs and protects their business.