Employment Law and Social Media - Recent Developments
The cyber-world of social media and the internet creates an increasing layer of legal risk for employers if such sites are misused by employees, particularly where employers provide employees with email and internet access at work. The raft of potential liabilities include defamation and workplace bullying and harassment.
A more critical issue is the extent to which employers may rely on information accessed or posted on the internet and social media in a disciplinary context. Traditionally, it has been difficult for employers to place prohibitions on the conduct of employees outside of work hours, unless the conduct has a sufficient connection with the employment. The wide-reaching nature of social media sites and the internet generally is making it easier for employers to establish a sufficient connection with employment in such circumstances. However, as the cases highlight below, having a comprehensive email, internet and social media policy is essential to establish the ‘sufficient connection’ with employment.
Recently, in the decision of Griffiths v Rose, the Federal Court of Australia considered whether an employer (the Commonwealth) was entitled to monitor an employee’s use of its laptop computer outside of office hours, and then use the information it obtained to justify terminating the employee’s employment. The employee was dismissed after an investigation revealed the employee had accessed pornographic material in his home, whilst using his own internet connection, but whilst using the employer’s laptop computer. The employer had in place a policy which stated that “employees are prohibited from using departmental facilities to deliberately access, display, download, distribute, copy or store… pornography.”
In affirming the dismissal, the Court reinforced the right of an employer to take disciplinary action when the conduct is sufficiently connected with the employee’s employment. In this instance, the policy clearly prohibited the conduct in question, even though it took place outside of work hours, in the employee’s home and at the employee’s own cost.
More recently, in Strutsel v Linfox, Fair Work Australia ordered that an employee be reinstated despite the employee making derogatory remarks about his manager on his Facebook page. Importantly, the employer had no policy dealing with social media and the employee believed that his Facebook page was private. In these circumstances, the termination of the employee’s employment was held to be unfair.
With these cases highlighting that employment obligations can extend beyond the office and outside of work, it is increasingly important for employers and employees to find a balance in the appropriate use of social media sites.
How can employers regulate social media in the workforce?
The key protection for employers is ensuring there is a thorough internet and social media policy, and that policy is reviewed regularly. Similarly, just as social media sites change and evolve, so should the policy. An employer is more likely to be in a position to successfully justify a dismissal if it has a clear policy in place.
A social media policy must be clear in its expectations of employees, so too should be the consequences for non-compliance. Even if the use of social media is banned in a particular workplace, consideration must also be given to conduct which may occur outside of the workplace.
Some common areas which social media policies cover include:
Prohibiting the inappropriate use of social media and the internet whilst using the employer’s property;
Prohibiting using the employer’s name, whether directly or indirectly in social media;
Prohibiting any bullying and harassment of fellow co-workers on social media sites;
Reinforcing that any confidential information acquired through the employment relationship must remain confidential and must not be the subject to any posts on social media sites; and
Prohibiting the positing of inappropriate comments, including comments about co-workers, customers and clients.
Every workplace is different and will have differing expectations. Therefore, a social media policy is an important tool for defining the standards of behaviour which are expected.
For more specific information on any of the material contained in this article please contact Lincoln Smith on 8210 1203 or email@example.com.