Social media is the communications and marketing tool of the moment. A significant majority of people have some form of social media involvement, whether that is through Facebook, Twitter, LinkedIn or one of the many other platforms.
A perhaps unintended consequence of the increase in social media is the extent to which it crosses the line between personal and professional relationships. LinkedIn, in particular, is often seen as a vital marketing tool in some industries, and employers have even been known to demand that employees have a LinkedIn presence, but the very nature of LinkedIn means that it is a “personal” site, with both personal and professional connections.
There has been an increased number of cases in recent years considering the ownership of contacts made on LinkedIn, and the extent to which the employer can demand access to the employee’s LinkedIn account. There have also been cases, though, where the employer is trying to argue that it has nothing to do with the employee’s social media accounts: this is generally the case when an employee has made defamatory remarks on a social media platform from which the employer is trying to distance itself.
What can the employer do, then, to try to ensure that it benefits – and is protected – from the behemoth that is social media?
Policy, Policy, Policy
We know, we know. Us employment lawyers like a good bit of policy. However, the truth is that a well-drafted, comprehensive policy can cover a multitude of sins and give 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 – excessive use of social media for personal reasons can negatively impact upon productivity. 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, before they tackle the discrete social media problem. Nowadays, employees do not even need to access social media (or, indeed, the internet) through work PCs, as they frequently have smartphones. The policy needs to address this head on. Do you limit it to “reasonable use” (perhaps more appropriate in a professional environment, where employees work longer than standard hours) or “lunch/break time use only” (perhaps 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 (e.g. marketing). The employer should ensure that the policy is clear that such pages belong to the employer and any passwords etc should be passed on to the employer, particularly if the employee leaves. Although it would be fairly unusual for an employer to successfully claim actual ownership of contacts made through LinkedIn on a personal profile page, the employer could still contractually require the employee to ensure that any LinkedIn contacts are uploaded to the employer’s database, again particularly prior to departure. Any restrictions required on the employee’s activities after cessation of employment, including contacting LinkedIn contacts, should be clearly spelt 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”, which is a term that has historically been construed quite widely. Also, of course, there is the reputational damage that can be done by an employee who posts views which are contrary to the employer’s values and ethos (e.g. an employee of a housing association who clearly states that they support the BNP). Employers, therefore, need to: – Make it very clear that posts on personal social media pages could lead to disciplinary action in appropriate cases. Be very clear that such action could include dismissal but, when implementing any disciplinary action, make sure that the “punishment fits the crime”- Provide clear guidelines to employees as to any posts that would be deemed unacceptable, and thus lead to disciplinary action, e.g. breaches of the employer’s equal opportunity policies, posts that risk damaging the reputation of the employer and/or its customers, or posts that disclose confidential information- 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 and its views on what activity is/is not acceptable- Ensure that the policy is widely available and consistently enforced. Disciplinary action should be taken whenever breaches of the policy are discovered – otherwise, there is a risk that, in the event of a serious breach, the provisions of the policy are undermined by the fact that nobody had ever paid any attention to it.
Social media is here to stay, at least for the immediate future. Employers should embrace that fact and put in place appropriate safeguards to ensure that their business is protected so far as possible.
As we have said, although employment lawyers do bang on a bit about the importance of policies, this is one area where getting it wrong could be expensive not necessarily from an employment law point of view but from a business risk and reputation perspective. And, as we all know, 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 Joanne Perry, employment lawyer at Sherrards Solicitors in St Albans.