“These are my personal opinions, not the opinions of my employer,” says the disclaimer on many social media accounts. Too right they are not the opinions of your employer – who has only one opinion on this point, and that is that you should be busy, rather than messing about on social media at work.
Despite the prevalence of this opinion, the interaction between social media and employment is reaching into a number of different aspects of employment law, from bullying and harassment to the protection of confidential information. Any employer who doesn’t know their hashtag from their elbow is setting themselves up for that most calamitous of internet occurrences, the “epic fail”.
The interaction between social media use and bullying was considered by a Full Bench of the Fair Work Commission just before Christmas. The Fair Work Commission can intervene when a worker is bullied while the worker is “at work”. However, the bullies need not be co-workers, so if people are saying mean things about you on Facebook, what does it mean to be “at work”?
The Full Bench rejected a submission that “at work” means “during a period when one is employed”. One of the problems with this submission appears to have been that it was explained as meaning that people were “at work” even while they were asleep, calling to mind the old axiom that “unless an employee has a job as a mattress tester or similar occupation, sleeping on duty is neglect of duty”.
Instead, the Full Bench held that the state of being “at work” had two components, the first being the performance of work, and the second being other activities authorised or permitted by the employer (such as being on a meal break or “accessing social media while performing work”). This means that a worker could be bullied for the purposes of the legislation if they accessed the nasty posts on their lunch break but not, apparently, if they accessed the same material out of hours.
If the test for being “at work” is doing things which are “authorised or permitted” by the employer, does that mean that the employer can simply ban social media use during work hours to avoid liability? It’s unlikely that this is the best answer. Even if employers can successfully ban social media use from the employer’s own networks and devices, nearly every employee has a smartphone they can have access during work hours. An outright ban is not only likely to be ineffective, but also means that the employer has less opportunity to provide guidance as to what is and what isn’t appropriate social media use.
One area where guidance is often required is the posting of confidential information. In 2013, J.K. Rowling was shocked to be identified as the true author of the novel “The Cuckoo’s Calling”, published under the pen name “Robert Galbraith”. It turned out that one of Rowling’s solicitors had disclosed the secret to his wife’s best friend who had in turn disclosed the secret to Twitter – at which point, well, goodbye secret.
In 2010, Catherine Deveny likened Twitter to “passing notes in class” – although that analogy breaks down a little when you realise that the notes are simultaneously being passed to everyone in the class (and to all the teachers at every school on the planet). Deveny’s off-colour tweets had also broken down her relationship with Fairfax as a columnist – as far as Fairfax was concerned, the nature of Deveny’s role as a columnist meant that Deveny was “at work” even whilst she was at the Logies.
Employees need to be aware that keeping the personal and the professional separate means more than just putting a disclaimer on an account – it also means not posting text, pictures or video images that could damage the employer. For example, after a safety incident, it is probably going to be unhelpful if there is video of the incident on YouTube. “Social media storms” can arise and pass with the speed of summer lightning (and be just as destructive) – the best way to chart a course is to ensure that employees have guidance before risks they arise.