Holland Beckett - In this rapidly expanding digital age, employers should spare a thought for how communication by employees via social media can create implications within the workplace.  While there is every chance that the use of social media by an employee could result in favourable impacts on an employer's reputation (for example, if an employee is particularly satisfied with an aspect of their employment and wish to make this widely known), there is also the possibility that employees may use social media as a means by which they do anything from vent their frustrations about unsatisfactory aspects of their employment or perceived injustices in the workplace to harassing or bullying colleagues out of the direct view of the employer.

These types of uses have the potential to detrimentally effect the employer’s reputation and/or workplace dynamics.   The most logical solution for employers, therefore, is to take control and set clear expectations before a potential problem can arise.

Potential Problems

If an employee is very active on social media there is every possibility that they will at some point make a comment online which makes reference, either directly or indirectly, to their employment.  In most cases, this will be of little or no cause for concern.  But in some instances, such as when an employee is divulging information that should remain private, it can be a real problem.  Employees need to remember that social media is extremely wide reaching and that although they are often only posting comments their friends can view, these comments have the ability to be shared with others, meaning the original poster no longer has any control.  No one can ever predict what the next thing to “go viral” will be, but the last thing an employer wants is for it to be something that portrays or reflects on them in a negative light.

Employees need to think about potential implications of sharing confidential or sensitive information on social media that could lead to loss of clients or potential clients.  If information is leaked that was supposed to remain confidential, or if comments are made that give competitors a signal that a potential customer is looking to engage, this may lead to clients taking their work elsewhere.  While most employees will have a confidentiality clause in their employment agreements requiring them to stay silent, there is the potential for them to inadvertently post, tweet or snap something that potentially breaches that requirement.

If an employee is experiencing a workplace relationship issue with the employer, the last thing the employer wants is for the details of the issue being made known on social media.  Often only one side of the story will be presented and statements can be made to appear as facts when no evidence to support the statement exists.  It is important that the matter does not enter the public domain before every effort has been made to resolve the issue.  While comments may be made about an employer which have the potential to effect their reputation, employees need to be equally aware that the comments they make may be seen by future prospective employers and that their historical actions may harm their chances of successfully obtaining further employment.

Another possibility is that employees will use social media to make disparaging comments about their co-workers to the online community at large (which the co-worker become aware of), or that they will make targeted comments directly to the co-worker.  This type of behaviour amounts to harassment or bullying. If the employer becomes aware of such behaviour and fails to act or intervene to protect the employee suffering the abuse, there may be grounds for a grievance.  Just because the undesirable behaviour is occurring outside of the workplace or outside of the normal hours of work, the employer still has a duty to act in good faith to establish and maintain a productive working relationship.

In some rare instances, a person sharing controversial or politically incorrect views or thoughts on social media may also result in them destroying their own credibility or drawing widespread criticism (as an extreme example think of Walter Palmer, the lion-hunting dentist).  Such instances could have the undesirable consequence of potentially bringing the person’s Employer into disrepute by mere association.  It is not possible to dictate what an employee can or cannot talk about outside of work if it is not related to their employment, but it could be helpful to remind employees that they represent the organisation and any adverse reactions to things they submit online could end up reflecting badly on the organisation.  Most employees will take this information on board and act accordingly.

One potentially useful aspect of social media for employers is the ability to use it as a screening tool prior to making an offer of employment.  Employers can assess potential employees by reviewing their online information, provided the employer does this without breaching any privacy requirements.  However, it should always be noted that this information only portrays one part of the overall picture of any person.  But it is also interesting to think that, in the same way, a potential employee may also screen the potential employer via social media for any information about what the work environment is like and whether employees appear happy in their employment.  Therefore, it is important to ensure that your employees are on board with the organisation’s stance on social media and understand that it has real implications.

Implementation of a Social Media Policy

So what can an employer do to minimise any undesirable outcomes from the use of social media by employees?  The best form of protection will be devising an appropriate Social Media policy that forms part of the terms and conditions of every employee's employment.  It will need to be made known to all employees and freely accessible to them.  All new employees could also have a specific reference to social media included in their agreements.

The Social Media policy will apply for the term of each employees’ employment and can stipulate that any breach may give rise to disciplinary action being taken.  However, it should be noted that an appropriate social media policy may still not aid employers in avoiding situations such as the NZCU Baywide scenario (where an ex employee uploaded pictures to Facebook of a cake she had decorated with disparaging comments about her former employer) as the policy will only apply during the term of employment and could not override the employees right to freedom of expression under the New Zealand Bill of Rights Act 1990.

Any policy will need to be drafted in such a way as to encapsulate any obvious issues that may arise and also any that may potentially arise in the future. As such, the policy should be broad in coverage but not exhaustive or limiting in its definitions.  There is no telling what the next stage of social media will entail, it is an ever-evolving concept. Therefore, even the broadest and most comprehensive policies will need to be reviewed regularly to ensure they remain current and relevant.

An employer wishing to implement a policy but needing guidance in relation to the drafting will no doubt find input from their employment lawyer beneficial.

This article was written by Amy Scott, Senior Solicitor, Holland Beckett