The fast shifting world of social media is creating new challenges for both employers and employees. Gardner Leader’s digital legal expert Andrew Shipp provides an update on the latest issues to hit the courts and employment tribunals, both here and in the United States.
Facebook has just announced its 901 millionth user, more than 500 million people are said to be tweeting, LinkedIn has over 100 million professionals connecting with each other and every day, new applications arrive, vying for attention in the social media stratosphere.
Social media has made a big shift from the early days, when Facebook simply provided a route for people to interact with people they already knew. Now, more and more businesses are using the different platforms to raise their profile and to interact with customers.
But under the noise of this ever rising tide of social media, many of the boundaries are becoming blurred between business and private interactions, causing problems in the workplace.
Some legal questions have arisen recently regarding social media use on both sides of the work/home divide.
In America, employers have started asking job applicants to log onto Facebook during an interview, or asking existing employees to name their boss or line manager as a Facebook friend, so that the prospective employer can get an insight into the private life of the job applicant.
This kind of action is dangerous because using the information available on a Facebook page may leave the employer open to an accusation of discrimination on the grounds of sexual orientation, religion, disability or age.
Employers taking this approach are arguing that they need to check whether employees are using Facebook to criticise their employer, or to assess the character of a prospective employee. It is also being used to monitor and investigate any accusations of employees using social media to bully or harass colleagues.
Courts in California have taken the view that the right to privacy must be weighed against the reasons put forward by the employer for intruding into the private life of an employee, saying that the employer has to prove that the intrusion is necessary and proportionate. Legislation is being introduced in California, Maryland and other states to prevent employers from requiring employees to give them access to their social media pages.
What happens on the other side of the Atlantic is likely to be echoed over here. It is therefore worth employers making a policy decision now about their approach to employees’ private social media accounts, to make sure that any request for access is “necessary and proportionate”. For employees, the advice is don’t hand over access to your private social media accounts without getting a written explanation of why it’s being requested, and how it will be used.
Social media sites such as Facebook, Twitter and LinkedIn are becoming important marketing tools for businesses. However, as with any new development, this produces new challenges and questions. For example, who owns the list of contacts in an employee’s account on professional social networking site LinkedIn? Who owns the log-in details of a social media account established by an employee for a company? Who owns the followers of a Twitter account set up for a company by an employee?
Once again, we look to America to guess what will happen next over here.
In one case, a former partner in a night-club business left and set up his own competing club. He took with him the log-in details for the original club’s MySpace page, which had over 10,000 friends. In a similar case, an employee who had set up a Twitter account to boost traffic to the employer’s website left the company, taking with him the Twitter account’s log-in details. He renamed the account, and kept the Twitter following.
In both of these cases, the US Courts have held that social media accounts, their log-in details and their ‘friends’ or ‘followers’ are capable of being trade secrets that are entitled to be protected.
In Ardis Health v Nankivell (SDNY 2011) an employee had been taken on to create and maintain her employer’s social media websites. When she was later dismissed, she took with her the log-in credentials for the websites, which were known only to her. When she refused to hand them over, the company was locked out of its own social media accounts. As the employee’s contract stated that any work she created or developed in her employment belonged to the company, the court held that the log in details belonged to the company and ordered her to return them, but not before the company had already suffered from the halt to their online activity.
To avoid such scenarios arising in your business, it would be advisable to have more than one person in charge of online social media accounts and make sure you set online access and passwords at company level and change them regularly, especially when anyone responsible for social media leaves the company. In addition, it is sensible to make sure employee contracts spell out who owns the accounts and the log-in credentials.
Whether it is a rude joke on their Facebook page or a grumble about someone at work, the extent to which it may be judged by the employer depends on a number of factors, including the type of business and whether the business is referred to, the effect, or potential effect, on the employer’s business, the readership and also, the seniority of the employee.
You should also consider the nature and context of the content complained of. Examples include:
For many people, it doesn’t seem possible that what they write to friends on their Facebook wall, or tweet to their followers, outside work could get them into trouble with their employer, but there are grounds for employers taking disciplinary action over ‘inappropriate’ use of social media.
A recent example is the case of Swansea University student Liam Stacey, 21, from Pontypridd, who was sentenced to 56 days in jail after admitting inciting racial hatred over remarks made on Twitter about the Bolton Wanderers player Fabrice Muamba. Not only did the remarks land him in jail, they also cost him his place on the Treorchy rugby team, and Swansea University has suspended him pending the conclusion of disciplinary proceedings.
But deciding whether behaviour is appropriate or not, can be tricky. John Flexman, a former employee of the British gas exploration company, BG Group, has just brought a constructive dismissal claim before a UK Employment Tribunal following a dispute with his employer over his use of LinkedIn. He was accused of “inappropriate use of social media” and found to be in breach of a company policy on conflicts of interest which prevents employees from ticking a ‘career opportunities’ box on the site. This is the first notable constructive dismissal claim involving a LinkedIn account and the outcome will be being watched carefully.
An employer should be able to take it for granted that employees will act in the best interests of the company and will not undermine it, just as an employee should be able to take it for granted that their employer will not try to undermine and diminish their abilities.
Public criticism of an employer on social media strikes at the root of this relationship, but even so, an employer needs to respond to criticism reasonably.
A teenage employee is unlikely to be dismissed if they tweet that their job is boring, as the complaint is about the job, not the employer and as many teenagers would describe their jobs as boring, the complaint is unlikely to reflect badly on the employer. On the other hand, a recent incident where airline cabin staff wrote disparaging comments about passengers and the airline’s safety procedures was judged to be highly damaging to the employer and the guilty staff were dismissed.
Like the school classroom, the workplace is a place where friendships and enmities are formed. Nowadays, these personal dramas may be played out in public on social media sites, and an employer has a duty of care to protect employees from inappropriate or offensive conduct, bullying or harassment from other employees. It means that employers have to show they will not tolerate employees posting remarks of these kinds.
Careless use of social media could be a betrayal of confidential information. For example, if an employee posts personal information like a date of birth that is also used for log-ins or passwords, there could be a breach of security. Or, in a business where client confidentiality is fundamental, a tweet by an employee that discloses the name of a client is likely to lead to instant dismissal.
This aspect also takes us back to the employment tribunal with Mr Flaxman, as his employer BG Group first raised the alarm in response to information he posted relating to the company’s human resources, which they say was confidential. They also disputed suggestions in Mr Flexman’s CV that he had brought about a reduction in staff attrition.
Taking the above into account, employers need to be very clear about what’s acceptable practice for employees when they are online. In addition, individuals should think twice before posting anything online. As a general rule, don’t write anything that you wouldn’t say out loud to a stranger.
What steps should an employer take?
The best strategy is for employers to prepare a social media policy that is regularly updated, rather than a piecemeal approach which may be hard to enforce. The policy should contain a set of rules that are sensible and reasonable, as oppressive rules are unlikely to be enforceable and will only serve to alienate staff.
It is important to set out the policy clearly, so that all employees know what the boundaries are and what is unacceptable. For example, unless it is clearly spelt out that employees must not, in any circumstances, post offensive remarks about another employee on social media sites, they may feel that they can post what they like outside office hours and that what they do in their own home is no concern of the boss.
The policy should also be aligned with employment contracts. The contracts should spell out that passwords and other login details are the property of the employer and should also tackle attitudes to business network contacts made by virtue of the employee’s job with the employer.
For further information please contact Andrew Shipp.
You can also find Andrew on Google+