When social networking and employment collide

Jennifer MillsJennifer Mills

               

Christie HallChristie Hall

Social media offers businesses many advantages, but also comes with potential risks. The use of social media sites has become second nature for many people to the extent that it may not occur to them that their conduct on those sites can impact their employer, as well as themselves. However, it is apparent that the use of social media by employees has the potential to cause substantial harm to the businesses for which they work. As an emerging phenomenon, the law around social media is quickly evolving and employers can be forgiven for wondering whether it poses more questions than answers.

For example, to what extent can companies restrict what their employees say and post in their personal capacities on social media sites such as Facebook and Twitter? How can businesses harness the power of social media without exposing their reputations to undue risk? Can an employer claim ownership of an employee’s social media postings and professional contacts? To what extent can an employer monitor an employee’s use of social media and discipline them for perceived misdemeanours, particularly if the employee’s use occurs outside of working hours and is not linked to their employer?

The range of issues that can arise from social media in the employment space is varied. To compound the problem, the current legislative regime was enacted long before the social media age and has proven inadequate to deal with the progress of basic technology such as email, let alone the challenges arising from social media.

Employers should bear in mind, as a starting point, that freedom of expression is a fundamental human right in accordance with the New Zealand Bill of Rights Act 1990 – everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form. An individual’s right to privacy is also enshrined in the Privacy Act 1993.

However, the rights of freedom of expression and privacy are subject to justifiable limitations. In the employment context, it has been accepted for some time now that an employer can monitor an employee’s work email, provided it is made clear to the employee, either in their employment agreement or by way of policy, that email is provided primarily as a “business tool” and that monitoring will take place by the employer.

The situation is a little more difficult when it comes to social media. Not only are these sites generally not business tools provided by the employer, but an employee’s use of them and any comments or updates posted are often made outside of working hours. Unless the employee’s page is open (that is, not private) or the employer has a “friend” or “connection” with the employee, then, to avoid breaching the employee’s right to privacy, the employer ought not access the employee’s page.

However, that is not to say that there is no degree of overlap between the use by employees of such sites for their own benefit and use for the benefit of their employer. For example, it is common for employees to use forums such as LinkedIn, Facebook and Twitter to build their own professional reputation, bring in career opportunities and generally to network in their industry. At the same time, it is increasingly common for employers to encourage employees to use social media to further the employee’s profile, ultimately for the benefit of the business.

Conflicts of interest can arise between an employer and its employees over the use of such platforms. This can range from questions of who owns the interest in the social media platform, such as business and industry contacts, as well as whether the employer can legitimately control what the employee posts on those sites and discipline them for posts that are inappropriate.

Ownership dilemmas – what’s yours is mine and mine is yours

If asked, most employees would say that their LinkedIn and Facebook accounts are personal to them and are their property; not that of their employer. After all, both LinkedIn and Facebook accounts are commonly in the individual’s name. Even if an employee inappropriately uses work time to manage their account, this is not usually seen as giving the employer the right to claim a proprietary interest in the account. Rather, it is treated as a misconduct issue and a misuse of the employer’s time and resources.

Further, while an employee will often list their employer on the site in question, a person is always entitled to say who they work for and who they have worked for in the past. LinkedIn is effectively an online curriculum vitae, and it goes without saying that a curriculum vitae, as a personal record of an employee’s academic accomplishments and employment history, has always been the property of the individual.

It is possible, however, that the position may be different if an employee is required to have a LinkedIn account as a term of their employment, and that account is used as a client relationship management database, as a “tool of business”. For the employer to have a reasonable argument that it has proprietary interests in a social media account, the issue ought to be front-footed and agreed with the employee from the outset of employment. This could either be in the employee’s employment agreement or by way of a social media policy (or both). That agreement or policy ought to make clear that the account is a “business tool” operated for the purposes of the employee’s employment, and that all use of work computers and other technology platforms (including mobile telephones) on social media sites are in the course of employment and for work-related purposes only.

The policy could also go as far as to say that any contacts and clients on those pages are the contacts of the employer and, as such, any contact with them following the termination of employment must comply with the employee’s post-employment obligations. These obligations would include any restrictive covenants in the employee’s employment agreement (such as non-solicitation) as well as confidentiality obligations, both contractual and at common law.

This can lead to employees setting up separate “work” and “home” social media profiles.

Inappropriate use of social media platforms – what can an employer do?

There are a number of cases to support an employer’s ability to discipline an employee in reliance on inappropriate use of social media sites, even outside of working hours.

The real issue is whether an employee’s use of social media breaches one or more obligations the employee owes to the employer, rather than when or where the conduct takes place. The obligations an employee may breach include those contained in the employee’s employment agreement, such as confidentiality and restrictive covenants or by way of company policy, such as codes or handbooks setting out additional obligations around acceptable behaviour. In addition to any contractual or policy requirements, an employee also owes obligations of good faith, fidelity and confidentiality at common law, which require him or her to act in the best interests of the employer. Overarching all of this is the employer’s right to require a suitable level of trust and confidence in the employment relationship.

These principles played out in the Employment Relations Authority case of Adams v Wellington Free Ambulance Service Inc. Ms Adams had abused her co-workers and an employee at another medical communications centre during working hours. Unable to let go of her concerns, she continued that abuse on Facebook and by text message outside her working day. Ms Adams was dismissed for serious misconduct following a complaint by her colleague.

Ms Adams argued that her dismissal was unjustified. In particular, she considered the Facebook exchange to be of no concern to her employer Wellington Free Ambulance Service Inc (WFAS) because it occurred outside of working hours.

In rejecting Ms Adams’ case, the Authority noted that:

“… [Ms Adams’] interactions on Facebook were legitimate areas of concern for her employer. In many ways her actions outside of work (via text with the non-WFAS employee witness and by Facebook with Mr [R]) were more serious because they showed that her reactions to work incidents were not left at work, but rather she decided to continue the issues in what she believed to be a private forum.”

Accordingly, the Authority considered the abusive comments made by Ms Adams outside of work hours to be not only equally relevant to those she made within work hours, but more serious as they demonstrated that she took her work issues beyond the working day. The Authority also commented that in light of health and safety obligations, WFAS was not only entitled, but obliged, to investigate problems between co-workers, even if they do occur outside of work hours. If an employer is aware of issues between co-workers playing out on social media, it will likely be necessary to investigate in accordance with the employer’s obligation to provide a safe working environment.

In another recent example, Ms Dickinson was disgruntled with her employer, the Ministry of Social Development. She took her dissatisfaction to Facebook, posting comments that, as a public servant, she was a “very expensive paperweight” who was “highly competent in the art of time wastage, blame shifting and stationary [sic] theft”.

Ms Dickinson’s remarks were not taken lightly by her employer who dismissed her as a result. The Authority, in upholding the dismissal, agreed that the comments were disparaging and derogatory of the public service. The Authority did not, however, consider that Ms Dickinson’s Facebook entries, on their own, would have justified her dismissal. They were instead considered as part of her employment history and past behaviour, allowing the Ministry to find that it no longer had trust and confidence in her.

A comprehensive social media policy is vital

While opening the doors to social media may weaken an employer’s control over its own reputation, many employers will find significant advantages from employees’ use of social networking sites, even if that does require turning a blind eye to the occasional drunken picture. Granted, there will always be the odd employee who takes it a step too far, but then that has always been the case.

While some employees are confident enough to allow their employees online carte blanche, most find that having a comprehensive social networking policy is the best step an employer can take to ensure that it can deal adequately with the myriad of issues that may arise.

A good social media policy ought to be upfront in outlining the organisation’s overall social media strategy. It should be very clear as to what employees are required to do as part of their duties and what constitutes acceptable and unacceptable use of social media (both during and outside of working hours). A good social media policy will address what employees may say about the company and their colleagues and how information posted on social media ties in with the company’s other obligations of privacy and health and safety. Clear reference should be made to the ownership of any resulting client contacts and information, and the policy should link this to employees’ post-termination contractual obligations. It is also prudent to note the types of disciplinary consequences that may flow from a breach of the policy, regardless of whether the breach occurs during working hours or not.

Even with a social media policy in place, employers will need to tread very carefully in this relatively unknown territory. Maintaining a clear and fair balance between employee rights and the needs of the business, and being open about those, is the best way to move forward in the technological age. 

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