Keeping up with social media

The ever changing world of social media is posing new problems for employers and employees alike. Howard Robson, Employment Partner, looks at the latest social media issues.

With teenagers now skilled at texting with a single opposable thumb in their pocket during lessons, it’s no surprise that social media is now impacting on the workplace as never before. So what’s all the fuss about? The most famous of all social media sites, Facebook, has recently reached its 901 millionth user, there are now in excess of 500 million people tweeting and over 100 million professionals around the globe are using LinkedIn. With more ‘apps’ arriving daily, and the increasing inter-connectedness between our smart-phones and other media platforms the impact of social media is huge both on our personal and professional lives.

In the past few years social media has exploded. Facebook, for example, started out as a way for college students to interact with their friends. Now, social media is utilised by businesses around the world as part of their marketing strategies. Moving from primarily a way for friends to communicate with people they already know, social media is now a platform for businesses to reach new clients. If you ever wonder why Facebook is free; it’s because you are a very specific target for their advertisers. You give Facebook your interests and ‘likes’ and they give you highly targeted advertising–it’s no coincidence that you see adverts for Star Trek uniforms if that floats your boat.    

With this ever changing social media world, one place where problems have frequently arisen is the workplace. Boundaries between business and personal interactions have become blurred, causing challenges for employers and employees alike.

So what are the major issues that social media users face on both sides of the work/home divide?

Should employers use Facebook to obtain information about employees?

There are stories emerging from the USA of employers asking applicants to log on to Facebook as part of an interview. This is certainly not best practice and is highly dangerous for the employer as this kind of action may leave them open to accusations of discrimination. The disgruntled passed-over job interviewee can be very determined to pursue a claim.

Why are employers adopting this strategy? They can argue that they are finding out whether employees are using Facebook to criticise their employer, or perhaps to find out what a prospective employee is really like; are they ‘one of us’? If they have an obsessive interest in..ahem…Star Trek, global conspiracy theories or ecology will they really be what that employer wants as part of the team? Therein lies the danger. 

Although there have been no incidences in the UK, courts in California have decided that the right to privacy must be balanced against the reasons why the employer finds it necessary to intrude into an employee’s private life. The employer must prove the intrusion is necessary and proportionate. In California, as well as a number of other states, legislation is being introduced to prevent employers requiring their staff to allow them access to their social media pages.

What happens in the USA usually shows up over here sooner or later, so employers may want to make a policy decision about how they approach employees and their social media activities.

Who owns social media information?

With the increasing use of social media by businesses, new challenges and questions emerge. For example, if an employee created a social media account for their employer, who owns the log-in details and list of followers? Similarly, who owns the list of contacts in an employee’s account on a professional social networking site?

Again, this hasn’t been tried in the UK courts yet, but cases have come to light in the USA. In one case, an employee who had set up a Twitter account for their employer, left and took with them the log-in details. They subsequently renamed the account and took the following with them. In another case a former partner in a night club left and set up a competing business. When leaving he took the log-in details for the club’s MySpace page, which had over 10,000 friends.

The US courts held, in both of these cases, that social media accounts, their log-in details, friends and followers can amount to being trade secrets and therefore entitled to protection in the eyes of the law.

Can employers control what employees say on social media?

Depending on whether an employee posts a rude joke on their Facebook page, or whether they make a derogatory comment about a colleague, there are a number of factors that will affect how it is judged by an employer. The first factor would be the type of business involved and whether or not it was referred to. For instance, an employee of a waste disposal company might have more freedom to tweet than an employee of a firm of solicitors.

The nature of the business would lead on to the second factor – the effect it would have on the employer’s business.

Third, who is the readership? If a tweet only reaches 5 people, the potential damage to the business is a great deal less than if it goes viral and reaches five million people.

Finally, the seniority of the employee is relevant. If, for example, photos taken at the company’s Christmas bash are posted onto Facebook by a junior staff member then the impact on the company’s reputation is far less than if a senior account manager with client facing responsibilities did the same thing.

Social media outside the workplace:

For most people, what they write on their Facebook wall or what they tweet in their own personal time, would not get them into trouble with their employer. However, there are grounds for employers to take disciplinary actions over inappropriate use of social media especially if their actions might damage the reputation of their employer.

A recent example of this is the case of Liam Stacey, the Swansea University student who was sentenced to 56 days in jail after admitting inciting racial hatred comments on Twitter about Fabrice Muamba, the Bolton Wanderers player who collapsed on the pitch during a match against Tottenham Hotspur. Aside from a criminal record and jail term, Stacey lost his place on his rugby team and Swansea University have suspended him pending the conclusion of disciplinary proceedings.

Criticising the company:

If an employer is criticised publicly within social media, they need to respond reasonably. If a teenage employee tweets their job is boring it likely to be a complaint about their job as opposed to the employer. On the other hand, a recent incident where airline cabin staff wrote comments about passengers and airline safety procedures was judged very damaging to the employer and the staff involved were dismissed.

Bullying and harassment:

The workplace, much like the classroom, is a place where friendships are formed…and lost. Nowadays, dramas and arguments are conducted in public on social media sites, and therefore an employer has a duty of care, as they do in the workplace, to protect employees from bullying and harassment from other employees. Cyber-bullying or harassment in the workplace should be a serious disciplinary offence.

Confidentiality:

In a working environment where client confidentiality is fundamental, an employee who tweets or posts confidential information is likely to be summarily dismissed for gross misconduct. Posting of personal information, such as a date of birth if it is used as a log-in or password, could also amount to a breach of security.

So what next?

As an employer, the best approach is to create a social media policy that is updated regularly and is easy to understand, practical and sensibly enforced.

The aim of the policy is to set out to employees what is unacceptable and where the boundaries lie. The great importance of business confidentiality, ensuring what statements may or may not be attributable to the business, not making derogatory or abusive comments about the business, colleagues or competitors, are all key elements in such a policy. Your policy might also encourage the appropriate use of social media as a business networking took.

If a policy is introduced then it will need to be aligned with employment contracts, and needs to be backed up with a practical approach to enforcement when necessary.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.