Mark Cox, Director & Joanna Knoth, Senior Associate
What an employee says and does on social media, including outside work time, can have an adverse effect on the business they work for or the colleagues they work with.
The public nature of communication on social media means employees need to be held liable for their conduct both during and outside of work hours. Employers may also be liable for the conduct of their employees on social media if it is connected with the employment relationship, and the employer has not taken reasonable steps to avoid that conduct occurring.
All employers should have social media policies in place to outline their expectations of appropriate social media use, and the consequences of breaches. A clear social media policy should manage what can and cannot be said on behalf of the business on social media. This policy can also safeguard the business against the risks that arise from improper use by employees.
This policy should be tailored to the business’s needs and reflect other organisational policies. Here are the most important reasons why your workplace should have a social media policy if it doesn’t already.
What employees say and do on social media can damage the reputation of the business they work for. This could include employees talking in a defamatory way about their colleagues or superiors, clients or customers, or say things that hurt the business they work for, or give away confidential or private information. It could also include less direct statements, such as posting derogatory comments or sharing contentious political opinions which may be wrongly attributed or connected to the business.
Mandatory disclaimers about opinions expressed and rules preventing what an employee can say about the business could help to combat these risks.
What constitutes an appropriate social media policy depends on the nature of the organisation and the risk posed by the social media activity. Professionals, school teachers, government workers and journalists, for example, would be subject to stricter policies than a cafe worker. But any employee can wreak havoc on a business with inappropriate social media activity.
Protecting Confidential Information
Disclosure of confidential information or trade secrets on social media represents a significant threat. A social media policy that clearly outlines what information cannot be shared will mitigate this risk. These guidelines should apply to both official social media accounts of the business as well as personal employee accounts.
Having a policy in place allows you to take action against an offending employee if the disclosure of information has a particularly severe effect and the employee in question was properly informed about the policy and are adequately trained to abide by its terms. Nearly every organisation has information-sensitive information, making it important to develop and communicate clear guidelines on social media use.
Preventing Bullying and Harassment
Discrimination, bullying and harassment of employees on social media are some of the most obvious areas that should be covered in a policy. Any social media use that breaches another policy of the organisation should be addressed by the employer.
A social media policy should emphasise that bullying and harassment policies extend to social media and explain the consequences of breaching them. Workplace harassment that occurs online rather than in person will not relieve you of liability as an employer.
Justifying Disciplinary Action
The Fair Work Commission has ruled that misconduct on social media can provide a valid reason to dismiss an employee. The Commission has also stated that a social media policy is a legitimate exercise of an employer’s power to protect the security and reputation of their business.
If disciplinary action relating to social media use is necessary, you need to provide adequate grounds to do so. By having a social media policy that clearly sets out what is and is not acceptable behaviour, and employees are made aware of and informed of the policy and its obligations, you ensure that your employees are well-informed. This means that they know their rights, obligations and the circumstances in which they may be disciplined for their conduct outside of the workplace.
Professional HR Advice
Drafting a social media policy involves a broad range of factors. Ensuring it is done right requires knowledge of employment law issues and case law surrounding social media conduct. Every business has different values and risks that impact how the social media policy should be formulated.
If you need employmenet law advice or assistance formulating a social media policy, contact our team of employment lawyers. Based in Perth, the workplace lawyers at MDC Legal are experienced in HR legal issues and can determine what kind of social media policy is best for your business.