With the exponential growth in the world of social media, it is important that employers are well versed as to the impact it can have on recruitment, employment and termination of employment. Provided employers tread carefully, they can reap the benefits that social media provides without putting themselves at risk of claims by their potential, current or former employees. We set out below some of the key issues.
Social media sites such as LinkedIn provide both employers (or recruiters) and potential candidates with an unprecedented opportunity to connect regarding potential employment opportunities.
However, social media also allows employers and recruiters to screen applicants prior to making offers of employment. The most significant risks associated with this practice include claims by an unsuccessful candidate that they were not offered employment on the basis of information, such as race or sexual orientation, sourced from the social media site.
The use of social media during employment can result in employers being held vicariously liable for conduct of its employees on social media sites (even where the offending conduct was outside of the office and office hours) or having their business reputation injured by negative comments posted by employees on social media sites.
"However, a total ban on social media in the workplace is generally not practical or desirable given the business advantages that can be derived from its use and the prevalence of mobile devices in the workplace.
By adopting and implementing a well-drafted and well-communicated social media workplace policy, employers can enjoy the advantages of social media while mitigating the associated risks. In fact, an employer was recently criticised by the Fair Work Commission in unfair dismissal proceedings for not having a social media policy at the time it terminated an employee’s employment for comments he made on Facebook. A policy should outline the employer’s expectations regarding the use of social media and social media workplace behavior should then be monitored and managed in accordance with the policy.
In recent years, social media has also emerged as a valuable tool for unions and action groups during bargaining and industrial action. We have seen social media used to communicate planned industrial action, to drum up public support for industrial campaigns and to incite employee support to vote down a proposed agreement. Given this trend, employers should consider factoring social media in to their own communication strategies in these areas.
Termination of employment
We are seeing an increasing number of unfair dismissal claims against termination of employment for reasons including social media posts revealing employee misconduct, damaging the employer’s business reputation with defamatory comments or employees engaging in excess use of social media during working hours.
In a decision handed down last month, a worker was found not to have been unfairly dismissed for, amongst other reasons, refusing to sign an acknowledgement that he had completed training on his employer’s social media policy. In its decision, the Fair Work Commission emphasised that employers can insist that employees comply with social media policies that control the employees’ conduct outside the workplace.
In another recent decision, a HR manager was found to have been unfairly dismissed for sending her principal’s estranged wife a private message on Facebook criticising him. The Fair Work Commission found that the communication did not breach the company’s social media policy because, although the communication had been conducted by means of social media, it was in the manner of a private email.
Social media also raises the question of contact list ownership on termination of an employment relationship. This is a largely unexplored issue in Australia but if Australia follows the United States, we can expect some litigation in this area as employers seek to restrain employees from accessing social media accounts post employment where their contracts and policies expressly provide for it.