More than 70% of businesses have reported having to take disciplinary action against an employee for misuse of social media. The statistic was gathered from a 2014 survey and compared to the same survey conducted in 2012, a 35% increase! The 2016 survey is yet to be released, it will be interesting to see if that figure has continued to rise.
There are many different issues that can arise from employees use of social media, these issues can be associated with:
- Use of personal social media during work hours; and
- Out of hours conduct on social media that:
- is likely to cause serious damage to the relationship between the employer and employee;
- damages the employer’s interests; or
- Is incompatible with the employee’s duties as an employee.
Employers could ban employees from using social media at work but that doesn’t cover the risks associated with out of hours social media conduct and do employers have any right to dictate how employees use their social media out of hours?
The best way to manage the risks associated with employee social media use is for workplaces to introduce a social media policy that operates in conjunction with policies on; internet and email use, discrimination, harassment and workplace bullying.
How to establish a social media policy for your workplace
Step 1 - In developing a social media policy, the following principles should be considered:
- Social media is a form of media – therefore normal risks in relation to publication in the media apply; defamation, contempt of court, misleading and deceptive conduct, confidential information and intellectual property law.
- Social media is available in court proceedings; which means when it becomes necessary to obtain evidence by subpoena or discovery, evidence published by means of social media is not different to any other evidence which may properly be sought and obtained.
Step 2 - Ensure the following 10 elements are addressed within your social media policy:
- Identify the principal risks which you as an employer are concerned about e.g. do you need to consider the impact of ownership of LinkedIn contacts for example
- Ensure the policy is comprehensive and makes employees aware of the rules and requirements for social media use set by the employer.
- Remind employees social media postings are a lot more public (and permanent) than staff room or water cooler gossip
- Outline what information is monitored and how
- Confirm that confidentiality obligations apply to social media use
- Make employees aware that publicly displayed comments reflecting negatively on the company or individuals in the workplace, could constitute unacceptable conduct even if posted outside of work hours
- Explain consequences for breaching the policy very clearly – ensure it is stated in the Policy that any breach of the Policy (including excessive use of social media) may be subject to disciplinary action which may include termination of employment.
- Make employees aware they are legally liable for what they post online and the liability may extend to the employer.
- Make employees aware that an employer can take legal action against them for defamation.
- Expressly refer to the possibility for social media use to breach other workplace policies, such as sexual harassment and anti-discrimination.
Step 3 – Training and Agreement
Team members should receive training on the policy and sign an understanding and agreement of the policy, including any disciplinary action stated that may be taken if they are in breach of the policy. Without a social media policy that is known to by employees, employers can have difficulty legally to act against employees when necessary.
Once your social media policy is established it may be tempting to presume that an unfavourable or disrespectful public forum comment will constitute a valid reason for termination. Hasty action should be avoided and replaced with a careful consideration of whether the conduct breaches any policies, common law duties or contractual obligations.
Ensure all and any reasons for dismissal have been fully investigated following a fair and equitable process.
If you would like help developing your social media use policy, please contact Harrison Human Resources.