Benefits and pitfalls of social media in the workplace - Legalwise Seminars

Edwards Law Barrister Matt Cables discusses the advantages and disadvantages of employees using social media in the workplace, with reference to best practice policy and case law. 

Statistics show that as of 2018, two out of every three New Zealanders are active social media users. This is a percentage that is increasing on a yearly basis and shows no sign of slowing. This obviously translates to a high percentage of the New Zealand workforce having access to and using their social media during the working day.

Businesses are generally aware of the increase in interest and participation in social media, and recognise the benefit of participating in online communities to share business interests, connect with people and increase brand awareness.

Social media encompasses a broad range of online activities, including:

• Blogging, such as on media websites and micro blogging websites such as Twitter;
• Social networking sites such as Facebook and LinkedIn; and
• Video and photo sharing websites such as YouTube and Flickr.

As the importance of social media use increases, so too does the importance of the way that both individuals and businesses present themselves across the platforms. It is important that employees are aware of the effect their social media use has on both themselves as well as the business they work for.

In line with the increased use of social media, there is an associated increase in the potential for employment issues occurring relating to its use, both inside and outside of the workplace.

• In the workplace this includes (but is not limited to) decreased productivity, inappropriate use of work emails such as bullying of colleagues and security risks to work computers e.g. viruses and use of storage and data.
• Outside of the workplace social media use can have implications for the relationship between the employer and employee and implications for the employer’s business, depending on the context in which its name or relationship with the employee is used.

Employers want social media to be a productive forum for maintaining and growing a positive business profile. They therefore need to have good systems in place to ensure that social media does not have a negative effect on the business’ customers/suppliers and reputation.

Employment issues often arise from the misuse of social media both inside and outside the workplace. These can usually be addressed under the well-established principles of employment law when breaches occur, but it is still important to have a good framework or system in place to deal with issues as they arise. Best practice would have these systems in place at the commencement of employment, as expectations are set and employees are aware of their obligations moving forward.

Social Media Policy

A good system translates into having a good social media policy.  It needs to be incorporated as part of the business’ overall risk management framework and should outline the areas seen as the most relevant risk areas. It should also clearly set out the potential consequences from the misuse of social media. There is no cover all for every situation, so businesses will need to adapt their policy depending on the industry and the business’ interests. However, some of the main areas that most businesses should cover include when:

• employee’s breach confidentiality or intellectual property rights, or post content online that may damage an employer’s reputation[i];
• employee’s post defamatory comments and there is no disclaimer that it is the individual’s personal view, rather than that of their employer;
• personal information is released, and it is unauthorised leading to potential breaches of privacy policies and the Privacy Act 1993; and
• the actions of employees on a social media forum has the potential to bully, harass or discriminate against another, which is both unlawful and likely against company policy[ii].

How an employer’s social media policy covers situations when employees are away from the workplace is a somewhat murkier proposition. Generally speaking, employers should expect that employees will apply certain standards when they are away from the workplace or on breaks, particularly when they reference their workplace or any association with it. Policy must also be formed to ensure that employees are aware how their actions on social media may affect their employer and how they will be held accountable for those actions.  Examples of these ‘standards of conduct’ include:

• not implying that employees represent or have authority to represent their employer;
• not using a work email address for personal social media activity;
• setting activity to private rather than public so that it limits the dissemination of content that individuals post[iii];
• avoid making comments about employment affiliated business; and
• considering before posting content if it will cause any harm (even unintentionally) to employers or other individuals.

It needs to be made clear to employees that breaches of social media policy can lead to disciplinary action, including in serious cases like breaches of confidentiality, termination of employment.

LinkedIn

When employers actively promote the use of social media to further their business interest, it adds an additional level of complexity and consideration for social media use in the workplace. A good example of this is the use of LinkedIn for business purposes and its use for the creation and maintenance of business relationships. This linkage is often encouraged or even required by employers as part of a role. Employers may insist that employees update their profile to the business domain and that it should remain as such even post-employment. Employers will have genuine reasons for this insistence, including the loss of business should the employee’s profile not be linked to the business.

But how long can a business insist that this occurs? This again depends on the social media policy that the employer has in place. In some specific industries this may now extend to a policy that solely focuses on LinkedIn, for example recruitment agencies.

If a specific policy is not in place, it should be a consideration from the outset of employment and detailed under the restraint of trade provisions in individual employment agreements.

Regardless, it is likely that more consideration will need to be given to these policies and provisions as we move into the future.

Matt Cables has degrees in law and social science from Waikato University. Admitted as a Barrister and Solicitor of the High Court of New Zealand in 2010, Matt joined the practice in 2017. Matt has experience in drafting legal documents and has represented clients in negotiations, mediations, and the Employment Relations Authority. He is also a member of the Waikato Rugby Union’s Judicial Panel. He brings a broad range of commercial experience to the role, having spent the previous eight years leading the credit team for a New Zealand based, multi-national company. Matt enjoys working with people, his aim is to assist clients to achieve the best possible outcome in what are often difficult and stressful situations. Email Matt at matt@edwardslaw.co.nz or connect via LinkedIn