The rapid rise of social media has changed the way we interact with each other in an unprecedented way like in Australia where 62 per cent of people use social media. The law has had to quickly catch up with this phenomenon. While there is no doubt as to the popularity and commercial benefits of social media in the modern business world, the challenge for employers lies in regulating its use to manage loss of productivity, minimise exposure to discrimination and ensure protection of business information.
The significant challenge for employers in regulating the use of social media is the blurred boundaries between work life and outside-of-work activities. Historically, courts have been reluctant to allow an employee to be dismissed for activities that occur beyond work hours and employers generally had no right to regulate activities not connected with employment.
However, technology and social media have complicated this as much of an employee’s life is often carried around in a smart phone supplied and used for work purposes, with access to social media applications detailing personal movements and developments. Colleagues and friends often become friends on Facebook or followers on Twitter and it is increasingly difficult to determine where an employee’s work ends and personal life begins.
The use of GPRS location settings to check in to places on Facebook or other applications can provide another evidentiary source for employers (with appropriate workplace surveillance policies), which may lead to disciplinary action if, for example, they can establish employees are not where they say they are during work hours, or are out and about when they have called in sick.
The full bench of Fair Work Australia in Linfox Australia Pty Ltd v S (2012) considered some of these issues in relation to the termination of an employee for posts on what he thought was a ‘private’ Facebook page.
While in the first instance the commissioner emphasised the need for employers in the “current electronic age” to implement social media policies and to “acquaint employees with these policies”, the full bench in upholding the decision provided some reassurance to employers that “the claim of ignorance on the part of an older worker, who has enthusiastically embraced the new social networking media but without fully understanding the implications of its use, might be viewed differently in the future”.
Twitter and LinkedIn
While Twitter and LinkedIn are increasingly being used to establish and maintain business relationships, it’s unclear who owns the account. Where an employer requires staff to use social media in their role, policies should make it clear the account remains the property of the employer at all times. They should require that logins and passwords are provided to the employer and that the account is handed back if the employee’s employment ceases.
Where the employer does not require the employee to use social media but the employee is doing so and gains contacts through the employer, the situation becomes murkier. While the law on this has not yet developed in Australia, this issue was considered in the UK High Court case of Hays Recruitment v Ions & Exclusive HR (2008) where an employee (Ions) used his LinkedIn network to approach Hays’ clients for his own rival agency (Exclusive HR). Although Ions claimed the contacts were not confidential, the court held that the contacts belonged to Hays and allowed disclosure of the contacts to Hays in relation to a possible claim against Ions and Exclusive HR.
Given the prevalence of LinkedIn, the ‘business card of the modern professional’, employers may be guarded about prohibiting its use in the modern business world. Rather, policies should be implemented to minimise any risk and exposure arising from its use by, for example, requiring LinkedIn account settings be set to hide contacts; mandating disclosure of login, passwords and contacts during employment; and/or deletion of employer contacts/account on cessation of employment for any reason.
In order for these provisions to be enforceable, they should be included in employment contracts as an extension of confidential information and post-employment restraint provisions. While the enforceability of many such provisions is yet to be tested in Australian courts, the existence of such provisions, if only for ‘paper value’, places an employer in a better position than they would be without them.