At the recent International Bar Association (IBA) annual conference held in Dublin, Terence McCrann, Partner and Head of the Employment Group at McCann FitzGerald, joined employment lawyers from various jurisdictions to discuss the particular implications social media presents for managing employment relations within organisations. While recognising that all organisations wish to maximise the endless opportunities which social networks provide, organisations must also evaluate the inevitable challenges and risks involved.
The social media session at the IBA identified the fact that the law in all jurisdictions has not quite caught up with the rapid growth and dynamic global impact that social networks provide. Legal principles conflict, between privacy and data protection and legitimate interests and legal obligations of employers.
As a result employers, including HR professionals and employment lawyers are working together to address these issues to enable businesses to maximise the opportunities social networks provide but also developing comprehensive, sophisticated and realistic policies and procedures that employers can adopt to address the inevitable challenges and risks that arise. This process is very much a case of “work in progress” as cases continue to emerge in jurisdictions across the globe resulting in further adjustment to those developing policies. Key aspects of the employment relationship are considered below.
For decades now HR professionals have developed best practice with a view to identifying and recruiting the very best talent an organisation needs to achieve its success. Part of that recruitment process involves encouraging diversity of talent and promoting, in a very positive and affirmative way, the fact that it is an equal opportunities employer in the full sense of that word. Great care has been taken to ensure that no discriminatory questions or issues arise, both during the application, short-listing and recruitment process that would in any way suggest or infer a decision being made or influenced on any form of discriminatory basis. Looking for details of a person’s age, sexual orientation, religious beliefs and/or any form of disability would be regarded as not only appallingly bad recruitment practice but in breach of discrimination laws in any jurisdiction.
The challenge for employers is the extent to which they consider it necessary and appropriate to search social media sites in the recruitment process and have regard to information posted by prospective candidates on such sites.
The primary question for employers is what information are they looking for and why are they looking for it in the recruitment process? Do they want to get an impression of the candidate and what does that mean? Also, is the prospective employer prepared to disclose the fact that this search forms part of a selection process, either in terms of informing, short-listing or otherwise. Employers will wish to have a very open and transparent recruitment and selection process that is best practice including giving feedback to successful but also disappointed candidates. Does a prospective employer look in some way underhand if it does not share this information? This generally only becomes an issue when disappointed candidates raise issues about some process involved in recruitment.
Several questions arise if employers decide to proceed with some form of social media search, namely, how is it to be done, who conducts the search and what do they do with the information collected if it includes “too much information”, i.e. gives the sort of information that one would not ordinarily look for in an application form or during the course of an interview. If, to take an example, an individual’s personal details in relation to health matters such as depression were to come apparent from a social media search, does such information impact on recruitment decisions leading to possible discrimination claims by the candidate if subsequently unsuccessful?
In summary, employers need to think long and hard about what it is they want from a possible search of social media sites, during the recruitment process. They should also consider what methodology they are going to adopt in carrying out those searches and assessing that information so as to ensure that such searches do not breach privacy, data protection, or discrimination law principles.
Protecting the Business
An employer has a very real interest in protecting its reputation, brand and image. Part of that extends to ensuring that employees, in their use of social media sites, insofar as this relates to an employer’s business, do not cause any reputational loss or damage to the business by either breach of confidentiality and/or inappropriate comments about the business products or other individuals in the business. Posting inappropriate comments about fellow employees could also result in “cyber bullying” and other related issues.
An employer needs to identify again what issues they are seeking to address and then include it in the workplace social media policy so that employees are crystal clear about what an employer expects an employee to do and not to do, insofar as the legitimate interests of the employer’s business is concerned. The policy will also need to address business contacts and other business related information on the employee’s social media profile and whether such information belongs to the employer or the employee personally. The policy can set rules for dealing with the client/customers on sites such as LinkedIn and the type of business information that an employee can post online. Very often an employee can have a good deal of information on their individual LinkedIn profile and use it for business whilst employed by a particular organisation but what happens when they leave or are headhunted?
Again, an employer needs to identify what it is seeking to achieve in protecting legitimate business interests and ensure that it is reflected in the social media policy so that employees are clear about the parameters of the employer’s policies and the legitimate interests in ensuring compliance with it.
Investigation, Discipline and Dismissal Issues
Part of the social media policy will also have to address the extent to which information gleaned from social media searches can form part of workplace investigations into particular issues or incidents and/or related disciplinary processes and procedures and ultimate dismissals. There have been a number of cases involving investigations, discipline and dismissals based on what an employer considered as inappropriate activity by employees using social media sites leading to an adverse impact on the employer either from a business reputational point or indeed potential breach of an employer’s workplace bullying policy, for example.
However, this area represents a potential landmine for employers and recent cases here, and in other jurisdictions concerning dismissals involving evidence based on social media activity, indicate that employers have a long way to go before getting it entirely right.
Social Media Policy – A Priority
This entire area is “leading edge” for employers and employees and HR professionals and their employment lawyers need to work together to develop comprehensive and practical policies but they must, by definition, be organic in circumstances where the phenomenal and rapid explosion of social media networks continue to develop in unforeseen and entirely unpredictable ways.
Employers should as a priority carry out a “root and branch” review of all its existing “Computer Use”/ “Internet use” policies and re-design and co-ordinate other related HR policies to make them fit for purpose for a new dawn of communications.