Erin Lynch, Associate
Employers are now all too aware of the extent to which not only their employees’ conduct but also their employees’ social media publications of conduct at work, at a staff Christmas event, or in an employee’s own time, can damage the employer’s brand and lead to legal ramifications.
Why should you regulate after-hours behaviour?
While many employers probably do not wish to involve themselves in employees’ out-of-work conduct, the legislative obligations which exist for employers as well as individuals (officers and employees alike) under both work health and safety and anti- discrimination legislation effectively require employers to regulate conduct that is connected with the workplace or with other workers.
The Sex Discrimination Act 1984 (Cth) (the “SD Act”) makes it unlawful for employees and other “workplace participants” to sexually harass each other at the workplace as well as for an employer to sexually harass an employee. The SD Act provides a broad definition of the “workplace” as “a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant”. In circumstances where an employee is found to have sexually harassed another workplace participant, an employer who has prohibited unacceptable workplace behaviour at after hours events and has taken all reasonable steps to ensure this prohibition is understood and enforced will have a defence to a claim that the employer is vicariously liable for the acts of the employee.
Similarly, employers’ obligations to ensure, to the extent reasonably practicable, the health and safety of workers under work health and safety (“WHS”) legislation will apply if the after-hours event involves workers being “at work in the business or undertaking”. This duty also extends to ensuring that the “health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking”. If the after-hours conduct triggers this duty, then officers and “workers” (employees and a range of others) are also implicated as they have a duty to either, in the case of officers, exercise due diligence to ensure the employer complies with its duties or in the case of workers “(w)hile at work”, to take reasonable care of their own health and safety and to ensure their acts or omissions do not endanger the health or safety of others (and also to comply with policies and instructions). If an employer and/or an individual manager takes all reasonable steps to prohibit inappropriate out of hours conduct but is faced with a WHS investigation and/or prosecution arising out of another employee’s misbehaviour it will be well placed to defend any prosecution.
As observed in a Commission decision, it is “becoming common for employees to express displeasure about their employers or co-workers on Facebook and other social networking sites and what might previously have been a grumble about their employer over a coffee or drinks with friends has turned into a posting on a website that, in some cases, may be seen by an unlimited number of people”.1
According to PCS consultant Greg Harrison (former Commissioner of what is now the Commission) “to regulate the use of social media outside the work context effectively, it is appropriate to implement and maintain a social media policy that sets out clear boundaries”.
The effectiveness of a well-thought- out and well-drafted social media policy is demonstrated in a case involving the ACT Department of Education and Training.2 The case involved a school teacher who allegedly breached the Department’s Directions on the use of social networking sites and the Teacher’s Code of Practice, by allowing students to be “Facebook friends” and then being untruthful when questioned about her Facebook account.
It was found that the applicant accepted a number of students as friends on her Facebook account, the applicant was aware that they were students and further, was aware that her actions were contrary to the Code of Practice and the Department’s Directions. The decision confirmed that the reduction of the applicant’s salary by one increment and the reiteration of a final warning should stand.
PCS recommends employers assess the ways that their employees use social media, particularly as we enter the “silly season” and review social media policies currently in place and, in particular, how broadly these policies extend.
How can you regulate the behaviour?
The regulation of appropriate, or inappropriate, after-hours workplace behaviour may be contained within any workplace behaviour policy or policy on social media (as discussed above), sexual harassment, discrimination or bullying because whether it occurs during or after work hours, the types of unacceptable behaviour will be the same and should be treated accordingly.
Nichola Constant, Director and Misa Han, Graduate Associate
With over 10 million Facebook users in Australia, it comes as no surprise that social media is as integral to workplace interaction as “water-cooler talk”. While social media channels such as Facebook posts, Twitter accounts and LinkedIn groups offer quick and easy ways to promote business and networking, they could also present headaches for employers.
In particular, employers now face the challenge of balancing bullying, harassment and brand damage risks with the need to respect employees’ privacy.
Facebook Comment = Pubtalk?
People have always talked about their work and colleagues after hours with friends and family. However, the digital era and social media mean that it is increasingly hard to distinguish between professional and personal conduct.
In the recent Linfox case1, a truck driver was dismissed after posting derogatory statements about his managers outside of his work hours. The Full Bench of Fair Work Australia upheld a finding that Linfox unfairly dismissed the employee and ordered reinstatement and payment of lost wages.
Even though this case was decided in favour of the employee, the case paves the way for employers to dismiss employees for posting inappropriate comments on social networking sites. The Full Bench noted that posting on Facebook is not equivalent to a conversation in a pub or café, as Facebook conversations leave a permanent written record and have a potentially wider circulation than a pub discussion. The Full Bench said that it was important for employees to exercise considerable care in using social networking sites to make comments about their managers or colleagues.
Ultimately detrimental to Linfox’s case was that it did not have a policy on social media and unsuccessfully sought to rely on induction training materials instead.
In light of this case, it will be increasingly dif cult for employees to hide behind ignorance to justify inappropriate comments posted online. However, employers must still actively manage the risks of social media use, including bullying, harassment and discrimination claims and ensure they have appropriate policies and training in place.
Maintaining Corporate Reputation
Employers are regularly warned about potential brand damage from employees’ misuse of social media. In an interesting example of potential brand damage by an employee Telstra discovered that this misuse can extend beyond criticism of the employer, after an employee pretended to be the Communications Minister. The employee set up a satirical Twitter account and pretended to be Stephen Conroy attacking Telstra. Telstra initially attempted to cover up the impersonator and his public attacks. However, Telstra realised a cover-up was not possible and admitted its employee’s behaviour.
Following this, Telstra implemented a new policy on social media. Telstra did not seek to ban social media as it considered that approach to be counterproductive. Instead, Telstra decided to encourage employees to promote the company, disclose that they are Telstra employees and to ensure information shared is accurate.
In the UK case of Crisp v Apple Retail2, Mr Crisp (an Apple Retail employee) posted a series of Facebook comments about Apple products, including his iPhone having no signal and an Apple application not working properly. He also posted disparaging comments about his work using one of iTunes’ advertising taglines. Apple Retail dismissed Mr Crisp for bringing the company into disrepute and striking at the core of Apple’s values.
The UK employment tribunal found that Mr Crisp’s comments about Apple products could amount to misconduct, corporate image was important to Apple’s business, and Apple was justified in terminating Mr Crisp’s employment. Although access to Mr Crisp’s posts was limited to his Facebook friends, the nature of Facebook, and the Internet generally, meant comments by one person could easily be forwarded onto the others.
This UK case recognises employers have the right to dismiss an employee when the employee deliberately damages the organisation’s corporate image. We strongly recommend in Australia that employers record this right in employees’ contracts of employment and social media policies.
Privacy and Social Media: A Balancing Act
It has become common practice for prospective employers to scan social media profiles of candidates. Some employers have gone so far as to ask job applicants for passwords, to ‘friend’ the HR manager, and to log into their profile during an interview, and required prospective employees to sign non-disparagement agreements banning them from posting negative comments about the employer before formally offering the position. But how far is too far?
In 2011, the Financial Sector Union (“FSU”) expressed concerns about the Commonwealth Bank’s social media policy impinging too far into the private lives of employees. The FSU claimed that the Bank’s policy exceeded the employees’ contractual obligations and duties of good faith. The Commonwealth Bank revised its social media policy to address some of the employees’ concerns.
This suggests that imposing restrictive requirements on social media use is likely not only to trigger individual negativity, but possibly industrial action, as well as potentially breaching privacy and employment laws.
These recent high profile cases suggest that employers may need to rethink their social media management and as in most employment matters, balance is the key.
The ‘hands-off’ approach may not be sufficient to protect employers from bullying and harassment risks or to protect the corporate image, while taking a ‘Big Brother’ approach is likely to trigger negative reactions from the employees. Employers should instead focus on building a positive workplace culture that recognises the realities of employees connecting through the new media and give employees the skills and direction to utilise social media for mutual benefit.
- Linfox v Stutsel  FWAFB 7097
- Crisp v Apple Retail (UK) Ltd ET/1500258/11
Joydeep Hor, Managing Principal
The following article is a modified version of a media release issued by PCS on 30 November 2011.
With end-of-year functions in full swing, employers must be mindful of the significant but as yet little understood dangers presented by social media.
Employees are often unaware of the extent to which their interactions on social media can damage their employer’s brand and result in legal ramifications, whether it is at work, at a staff Christmas event, or even in their own time (such as after-parties).
Employers must realise that the biggest reputational risks social media presents their businesses are not associated with ‘where’ or ‘how’ employees interact. Rather, it is with whom they are sharing those interactions. Essentially, the ramifications of what happens within the confines of staff events, such as Christmas parties, are not limited to who is attending.
By way of example, former Canberra Raiders NRL star Joel Monaghan was recently forced to resign from the team within 48 hours of lewd pictures of him taken at a team end-of-year celebration being released into the public domain on Twitter.
Given the increased connectivity social media provides between fellow employees, friends and even strangers, anything posted online, regardless of it being posted at a work event or using work hardware (such as Blackberries or iPhones), is accessible by anyone else on social media.
Corporate brand damage arising from social media is most commonly associated with disparaging comments, photos, videos or blogs published by an employee, or the disclosure of confidential information or trade secrets. Contemporaneous photos posted via social media sites may also become relevant evidence in court cases that address behaviours that have transpired at these events.
Another example is Olympic swimmer Stephanie Rice who lost at least one sponsorship deal and may have suffered irreparable damage to her reputation following a controversial ‘tweet’ which was derogatory to homosexuals.
Ultimately, employees are accountable for ‘private’ Facebook or Twitter comments made in their own time, especially when the comments refer directly to the employer, or where the employer may be held liable for offensive comments.
PCS recommends employers assess the ways that their staff use social media and review social media policies currently in place and, in particular, how broadly these policies extend.
A thorough social media policy is a ‘must-have’ for all organisations and should be regularly updated so it remains relevant as it is an area which is constantly evolving. Staff should also receive training about the policy.
Tim Wilson, Associate
LinkedIn is the world’s largest online professional network. Founded in 2003 in California, LinkedIn now has over 100 million members worldwide, two million of which are in Australia. One source cites the professional networking phenomenon as gaining a new member every second.
This professional networking platform has created significant waves in the business world and is seen by some as the future of professional recruitment and business development. However, as with everything to do with social networking, the opportunities are accompanied by pitfalls.
This article examines these issues. It also examines the implications where an employee uses LinkedIn to inform his/her contacts that they have left their employer and/or moved to a competing business and “solicits” those contacts to follow the employee to the competing business.
LinkedIn’s functionality is already extensively utilised in the recruitment space, particularly in identifying and screening candidates. A 2011 survey in the US found that 73 out of 100 Fortune 500 companies had used LinkedIn as part of their recruitment processes.
Increasingly, our clients are recognising the value of LinkedIn as a professional networking and business development tool. Increasingly, employees in professional industries are expected to seek out networking and business opportunities. The value of LinkedIn is that it provides a convenient and efficient forum in which professionals can connect. A presence on LinkedIn and content posted to a page can extend exponentially further than a standard mail-out list because of the largely “open” nature of LinkedIn pages and its system of first, second and third degree contacts.
The quasi-private / quasi-public nature of LinkedIn presents a number of potential stumbling blocks for employers.
(a) Who owns LinkedIn contacts?
As the value of LinkedIn contacts has become apparent, employers have started to ask who actually owns these contacts. A recent example from the Sydney recruitment market illustrates the difficulties around this point.
Earlier this year, a senior Sydney-based recruitment consultant (“Recruiter”), left a large legal recruitment firm (“Firm”), to move to another high- profile legal recruiter. Reports of the dispute indicate that:
- over a period of years (including during the Recruiter’s employment with the Firm), she developed an extensive network of LinkedIn contacts;
- some time after the Recruiter left the Firm, she updated her profile to reflect her new employer and she began updating her employment history on her LinkedIn profile;
- the Recruiter’s employment contract with the Firm included a six-month post-employment restraint against soliciting clients of the Firm or using its intellectual property (but did not specifically deal with LinkedIn or social networking); and
- when the Firm became aware that the Recruiter had been contacted by a candidate in her network, it commenced Local Court proceedings for damages and to obtain an injunction.
This case is yet to be determined.
These factual circumstances are not unique and raise a number of questions, including:
- Whether all of an employee’s LinkedIn connections are the confidential information or intellectual property of the employer. If not, can a distinction be drawn between connections that were obtained in the course of employment and those that were obtained privately?
- Is there any difference between contacting a client through LinkedIn and any other form of direct communication? What about posting an update?
(b) Confidential Information / Intellectual Property
Whether or not LinkedIn connections are confidential information and any different from client and supplier lists is yet to be determined by the Courts. However, the answer may depend more on how those connections were formed, rather than whether they are recorded in LinkedIn, or elsewhere. That said, some connections might start as private relationships and later become business relationships or vice versa. For this reason it may be more useful to think about the ownership of a client relationship, rather than the individual relationship between an employee and client.
In a 2008 UK High Court case, Justice Richards made a number of instructive comments concerning whether LinkedIn contacts could be confidential information. In that case, Mr Ions, a mid- level recruitment consultant with Hays Specialist Recruitment, announced that he was leaving Hays to set up his own recruitment consultancy. Prior to leaving, Mr Ions sent invitations through LinkedIn to at least two of Hays’ candidates to join his network. At least one of these candidates responded by accepting the invitation and asking Mr Ion to secure them suitable employment.
Although the case was about whether pre-trial discovery should be ordered, Justice Richards examined whether Mr Ions’ conduct could amount to a breach of his employment obligations (including whether he had misused Hays’ confidential information). Mr Ions argued that he had been encouraged by Hays to form connections through LinkedIn and that once his invitations were accepted, the client information was posted to a widely accessible page and ceased to be confidential. Justice Richards disagreed, arguing that if the client information was confidential, by uploading the information to LinkedIn Mr Ions had transferred Hays’ information to a site where the information would be accessible to him after he ceased employment. This was the potential breach, even if the confidentiality of the information was later lost.
In the case of the Sydney recruiter discussed above, part of the Recruiter’s defence appears to be that she established most of the connections in her personal time as part of her involvement in the law, and that many of the connections pre-dated her employment with the Firm and her use of LinkedIn. The Firm’s response was that the information on LinkedIn was capable of being the intellectual property of the employer, “just like any other medium you can record or store information on”. Following Justice Richards’ reasoning, a court may be convinced by this argument in future cases.
The Courts have a great deal of experience in determining whether the post-employment conduct of employees amounts to solicitation. However, it remains to be seen whether direct communications through social networking platforms and undirected announcements (such as postings or updates) will be treated any differently.
A 2010 Minnesota District Court case provides an interesting illustration of how solicitation can play out through LinkedIn. In that case, an IT recruiter contacted former colleagues and clients through LinkedIn to invite them to the recruiter’s new firm.
The recruiter’s contract of employment contained 18-month post-employment, non-compete and non-solicitation obligations. This dispute was settled on the condition that the recruiter provide broad restraint undertakings for a period of up to 14 months.
Commenting on this case, a US practitioner made the refreshingly common-sense statement that, “if you can’t call someone and say it, and you can’t send a letter and say it, then you shouldn’t be doing it on LinkedIn”. As occurred in this case, LinkedIn may provide useful evidence of solicitation occurring.
(d) Other issues
In recent years employers have had to re-examine how much control they attempt to exercise over employee use of social networking platforms at work. This has given rise to a myriad of issues, including employee privacy and appropriate use. Although most often associated with Facebook, these issues apply equally to LinkedIn.
Additionally, the nature of LinkedIn exposes employers to a potentially greater risk that their employees will be seen to be acting on behalf of the employer or expressing its views. There is also scope for confidential or commercially sensitive information to be widely disseminated.
How then do employers reap the rewards of LinkedIn and other social networking platforms whilst minimising their risk exposure?
Some companies in the US are requiring exiting employees to “un- friend” from Facebook and remove from their LinkedIn network contacts that are connected with the company. However, this may be perceived as a difficult and extreme approach.
Employers should check their employment contract templates and ensure that they provide adequate protection. It is not uncommon for senior employees to be employed under unwritten or out-dated contracts or contracts that do not contain any restraints. Likewise, most employers have yet to update their template contracts to respond to the rise of social networking. This could include broadening the definition of confidential information or even solicitation (for example, to extend to employment candidates). Ultimately, whether an employer takes these steps may depend on how harmful it would be were an employee to take their LinkedIn connections with them. Likewise, any such provisions must be tailored to the particular employee to improve the prospects of the restraints being enforceable.
Employers should be proactive about dealing with social networking use in all aspects of the workplace. As discussed above, employee use of LinkedIn raises many of the same issues as Facebook and other platforms. Employers should consider whether their existing policies adequately deal with these issues and whether they need to implement a social networking policy.
Now is the time to ask whether your organisation is appropriately equipped to respond to the many challenges social networking sites can provide.
PCS has a number of templates available for its clients in relation
Amber Wood, Associate
It seems not a week goes by without another employee being disciplined or dismissed due to their inappropriate use of social media platforms such as Facebook, MySpace, Twitter or YouTube. However, most employers are still without any social media policy and appear to be adopting a ‘wait and see’ approach to social media in the workplace.
With Facebook boasting more than 500 million active users worldwide and Twitter recording 175 million registered users, many organisations are unsurprisingly keen to harness the endless commercial potential including advertising and marketing opportunities and direct access to customers and potential employees which social media offers.
Nevertheless, many organisations remain wary of the legal and reputational risks associated with such new technology which has changed the way that individuals and organisations communicate. Gone are the days when organisations could carefully control who speaks publicly about an organisation, what they can say and when they can say it. Today, social media platforms give everyone a voice which can be heard by millions of people at the click of a button, and while a damaging Facebook post or “tweet” may be posted to the web instantaneously, it can remain in the public domain forever.
Risks for employers
The main risks which social media poses for employers include:
- the need to discipline or terminate the employment of employees for comments, posts or videos made by employees either in a personal or professional capacity;
- potential vicarious liability for bullying, sexual harassment or discrimination which occurs online;
- possible reputational risk and damage to corporate branding arising out of disparaging comments, photos, videos or blogs published by an employee, or disclosure of confidential information or trade secrets; and
- managing or monitoring use of social media during work hours to maximise employee productivity.
Expensive lessons: recent cases of social media making the news
Whether employees should be disciplined for ‘private’ Facebook or Twitter comments made in their own time has been the subject of much debate. However, it is clear that employees are accountable for these comments, especially when the comments refer directly to the employer, or where the employer may be held vicariously liable for offensive comments. For example:
- in May 2010, The Age columnist Catherine Deveny was stood down after making inappropriate comments or ‘tweets’ on Twitter during the Logie awards ceremony. The Age’s Editor-in-Chief Paul Ramadge stated that “the views she had expressed recently on Twitter were not in keeping with the standards … set at The Age”;
- Olympic swimmer Stephanie Rice lost at least one sponsorship deal and may have suffered irreparable damage to her reputation following a controversial ‘tweet’ which was derogatory to homosexuals;
- the editor of a regional newspaper was stood down by Fairfax Newspapers after posting comments on his Facebook page stating that the death of Constable Bill Crews would ‘lift circulation’;
- a lawyer employed by a Queensland University was investigated after posting a YouTube video of himself burning and smoking pages from the Bible and Koran; and
- Canberra Raiders NRL star Joel Monaghan was recently forced to resign from the team after lewd pictures of him taken at a team end-of-year celebration were released into the public domain on Twitter.
Recent case law
Fair Work Australia recently considered two unfair dismissal cases following the dismissal of employees for making comments on Facebook and MySpace respectively.
In Sally-Anne Fitzgerald V Dianna Smith t/A Escape Hair Design  FWA 7358 (24 September 2010), a hairdresser who wrote “Xmas ‘bonus’ alongside a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!!(sic)” on her Facebook page successfully brought unfair dismissal proceedings against her former employer. After being dismissed due to ‘public display of dissatisfaction of base of employment’, the hairdresser received $2340.48 in compensation after Commissioner Bissett found that there had not been a valid reason for her termination. Commissioner Bissett also commented that “a Facebook post, while initially undertaken outside work hours, does not stop once your work recommences…It would be foolish of employees to think they may say as they wish on their Facebook page with a total immunity from any consequence”.
By contrast, in Tamicka Louise Dover- Ray v Real Insurance Pty Ltd  FWA 8544 decided in November 2010, an employee unsuccessfully brought unfair dismissal proceedings against her former employer after she was dismissed following publication of a disparaging blog about the employer. The employee had been unhappy with the outcome of a sexual harassment investigation into a complaint she had made about a male colleague. She subsequently wrote a lengthy, scathing blog on her MySpace page, describing management as ‘witch hunters’, referring to the company’s values as ‘absolute lies’, alleging that her employer was corrupt and revealing confidential information about the investigation. The employer was made aware of the blog and contacted the employee to ‘show cause’ and remove the blog, which the employee refused to do. Fair Work Australia found that writing the blog (which was searchable on Google) and failing to take it down as reasonably requested, were valid reasons to terminate her employment.
Both cases illustrate how an employee’s private social media posts may be regulated by an employer and should serve as warnings to employers and employees alike.
Your Key Actions
- Consider your organisation’s current online presence and the ways in which your employees use social media both in and outside of the workplace.
- Assess what steps your organisation has taken to minimise potential issues arising from use of social media by customers and employees. For instance, how would your company respond if faced with a scenario similar to any of the cases above?
- Review any social media policies currently in place and consider how far these policies extend. Ensure that any social media policy in place reinforces other policies, particularly in relation to sexual harassment, discrimination, bullying and OH&S.
- Implement a thorough social media policy which compliments any broader social media or online marketing strategies in place.
- Ensure that the policy is explained to employees, preferably with an acknowledgement by them that they have read and understood the terms of the policy and are familiar with it.
- Staff should also receive training regarding the policy which should include education and awareness about social media as it is a new area which is constantly changing, and some staff may not be aware of many of the concepts.
- Regularly update the policy so that it remains relevant and make sure employees are aware of any changes.
- Take a proactive approach to social media by not only implementing policies and training, but by ensuring that inappropriate use of social media by employees does not go unaddressed.
What should a media policy include?
A good social medial policy will be well-integrated with other policies in place within the organisation and will be up to date, clear and concise. Its content will be specific to the needs of each organisation but some common areas include:
Social media, sexual harassment and bullying – what to look out for
It is vital that all staff are aware that comments, posts and messages they send to or make about other staff on Facebook may constitute sexual harassment, bullying or discrimination.
Employees must be educated about the serious ramifications of what they post on social media sites and how their actions towards a colleague on Facebook may result in disciplinary action or termination. Particular areas to watch include: