Social media is the communications and marketing tool of the moment.
An unintended consequence of the increase in social media is the extent to which it crosses the line between personal and professional relationships. LinkedIn, for example, is often seen as a vital marketing tool, with some employers requiring their employees to have a LinkedIn presence, but the very nature of LinkedIn means that it is a “personal” site, with both personal and professional connections.
In this post, I explain what the employer can do to ensure that it benefits – and is protected – from the behemoth that is social media.
There have been a number of recent cases concerning the ownership of contacts made on LinkedIn, and the extent to which the employer can demand access to the employee’s LinkedIn account. By contrast, there have been cases where the employer argues that it has nothing to do with the employee’s social media accounts: generally where an employee has made defamatory remarks on a social media platform. So what can you do?
Policy, Policy, Policy
Yes, employment lawyers love a good bit of policy, but the truth is that a well-drafted, comprehensive policy can cover a multitude of sins and give you the employer greater protection in troublesome situations.
A good social media policy will consider the following:
- Use of social media in the workplace, during working hours
Employers need to assess to what extent they are happy for employees to engage in any kind of personal internet usage in working hours, and whether or not on work equipment.
Do you limit it to “reasonable use” (perhaps more appropriate in an environment where employees work longer than standard hours) or “lunch/breaktime use only” (better for hours-based work, or where employees work strictly 9-5)?
- Ownership of social media pages/content
As part of their employment, the employee may be required to create social media pages linked to their role. The employer should ensure that the policy is clear that such pages belong to the employer and any passwords should be passed on to the employer, particularly if the employee leaves. Any restrictions required on the employee’s activities after cessation of employment, including contacting LinkedIn contacts, should be clearly spelled out in contractual post-termination restrictions.
- Content of posts/blogs made on social media
A particular risk encountered by employers is the employee who makes defamatory or offensive comments in a personal capacity, but whose social media page clearly connects the employee to the employer. There is a debate to be had about the extent to which restricting employees’ freedom to post their own views on a personal page is somehow a restriction on their human rights, or a breach of privacy, but the fact of the matter is that employers could face significant harm from such comments.
Indeed, employers can be held responsible for discriminatory acts (including comments) made by employees “in the course of their employment”.
There is also the reputational damage that can be done by an employee who posts views which are contrary to the employer’s values and ethos.
Employers therefore need to:
1. Make it very clear that posts on personal social media pages could lead to disciplinary action in appropriate cases.
2. Provide clear guidelines to employees as to posts that would be deemed unacceptable and lead to disciplinary action, e.g. breaches of the employer’s equal opportunity policies, or posts that disclose confidential information.
3. Ensure that appropriate training and support is provided, in a wider context (e.g. discriminatory activities), and specifically in terms of communicating the employer’s social media policy.
4. Ensure that the policy is widely available and consistently enforced. Disciplinary action should be taken whenever breaches of the policy are discovered. Social media is here to stay and employers should embrace that fact and put in place appropriate safeguards to ensure that their business is protected so far as possible. Getting it wrong could be expensive not just from an employment law point of view but also from a business risk and reputation perspective.
The viral nature of social media means that the risks could be significant!
For help with any of the above (including a policy!), please contact St Albans employment solicitor Joanne Perry.