Social media, reputation management and employment law

Posted on: September 7, 2011

I’m not a lawyer nor an employment expert, but a number of clients have asked for help in developing their social media policy with regards to protecting their reputation and those of their people. Naturally, I always talk to the relevant lawyers and HR people.

So it was interesting to read a recent seven page article (August 2011) in PLC magazine http://plc.practicallaw.com/ called “The challenges of social media” by two lawyers from Baker & McKenzie addressing dismissals and disciplinary action in the new digital world.

Some of the issues addressed included:

  • Comments made outside working hours
  • Inappropriate behaviour in private life
  • Misconduct outside the workplace
  • Bullying and harassment using social media
  • When employees dispute their involvement in inappropriate social media activity
  • How the European Convention on Human Rights and “the right to respect for his private and family life, his home and his correspondence” applies to social media

A number of cases were mentioned – although most related to email rather than other social media tools like Twitter. But there were a couple on Facebook and YouTube cases. One of the key points emerging from case law was that employers are not obliged to disregard conduct simply because it occurs outside the workplace.

The article contains a list of practical tips for social media policies including:

  • Restrict access to social media sites through employer’s IT systems and/or during work time (although personally I don’t agree with this idea in the professions)
  • Remind employees that if the employer’s name is linked to the employee’s profile that they must not make comments about the employer, colleagues, clients etc (although again I would suggest that employees are advised not to do this in any situation)
  • Warn that comments made on social media sites should be treated as public rather than private (I always say that this applies to any written communication – even in emails – and to always consider how you would feel if and the consequences of what you had written were to be seen by anyone other than the intended recipient)
  • Instruct employees to state that any views expressed are their own
  • Protect employer’s confidential information (in the professions, extra guidance should be given on not mentioning client or case/project names or sharing intellectual property without seeking permission)
  • Prohibit bullying, harassment or other discriminatory behaviour through social media (I would have thought that most employment contracts would cover this anyway – but in my experience people probably need some help in appreciating what might be considered by others to be this type of behaviour)
  • Cross reference to other policies relating to disciplinary rules, Data Protection and equal opportunities
  • Explain how the employer will monitor social media use by employees
  • Warn that breach of policies might lead to disciplinary action – up to and including dismissal

Personally, I also add some other points to social media policy – especially where it’s use is relatively new. For example, what employees should do in the case of a mistake or a crisis, to be sensitive to issues that may cause offence to particular client groups, to liaise with senior staff in cases where there is uncertainty or concern, to obtain the necessary training and to follow firm style, best practice and templates. I also suggest that staff are given guidance on what to do when making or seeking “recommendations” and connecting with critical clients.

Interestingly, on 1st September ACAS launched its first guide to social network (Twitter, LinkedIn, Facebook) use at work http://www.acas.org.uk/index.aspx?articleid=3375. It states that 55% of staff now use the sites at work although less than 10% of employers have a social media policy. ACAS suggests consulting with unions and staff to agree a list of do’s and don’ts and make clear the consequences of breaching the policy once it is part of the contract of employment.

Whether it is true I don’t know, but someone told me that Microsoft’s social media policy was a single line: “Don’t do anything stupid that could make you lose your job”.

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