Both the use of social media and the consequences of its use are developing areas of the law and can give rise to uncertainties in an employment context. It is clear that social media is here to stay and therefore business owners and employers while being conscious of the advantages and disadvantages of its use, should take steps to ensure they get the maximum benefit from it while also protecting themselves, their employees and their businesses from the potential problems that can arise.
The benefits of social media for business owners are many and include marketing, relationship building, publicity and recruitment. The potential pitfalls include having confidential information relating to your business or your customers being disclosed online, negative publicity if an employee posts something offensive or inappropriate online particularly if the post goes viral.
Business owners who are also employers and who want their employees to use social media on behalf of their business should ensure the following:-
- The particular social media account should belong to the employer. In this regard, the employer should set up the individual employee on the relevant social media platform, should know the password and should ensure the employee understands that this particular social media account remains the property of the employer. Any monitoring by the employer should be on notice to the employee and should be transparent. The social media account is for work related purposes only and on the termination of employment all information relating to those social media accounts must be furnished to the employer. Employers should ensure that their social media policy allows that all material produced on the social media account and all contacts made as a result of same belongs to the employer and is treated the same as product produced during the course of the employee’s employment.
- The employer should ensure they have a properly drafted social media policy which forms part of their employees’ contracts of employment. A social media policy is a separate policy to an internet and email usage policy although it can be integrated into the same document.
- The social media policy should be clear as to what conduct by employees on social media is acceptable and what conduct they are prohibited from engaging in. For example conduct that would normally be prohibited would include directing negative comments at an individual or group based on such matters as their race, religion, gender, sexual orientation, etc.; disclosing any trade secrets or confidential information relating to the business; posting information, photos or recordings of company events without getting express prior authorisation to do so and so on.
- The social media policy should also apply to use of social media even when it is not in the workplace. For example making it clear to employees that posting disparaging comments about their employer on their FaceBook page on a Saturday night when they are not at work is not acceptable and could lead to the employee being disciplined.
- The social media policy should set out the consequences and sanctions that will apply if there is a breach of its terms.
If an employee wants to disclose on their personal social media accounts that they are employed by or affiliated with the company (their employer) then they must use an appropriate disclaimer to make it clear that their opinions are their own and they have no authority to speak on behalf of or as an agent for their employer or the company. A social media policy is therefore necessary even when, as an employer, you do not require your employees to have a social media presence in the context of their employment and their social media accounts are for their personal use.
Of course, all of the above is only effective if the policy is brought to the attention of the employees before it is implemented.
While the law in this area is developing, there have been a number of relevant decisions from the Employment Appeals Tribunal and cases in other jurisdictions which suggest that employers and business owners who take steps to introduce proper policies and procedures and who act in a fair and transparent manner in applying those policies and procedures will be looked upon more positively by the courts than those employers who fail to implement any or any appropriate policies.
At Douglas Law Solicitors we provide expert advice to employers. We prepare workplace policies (to include social media policies) tailored to suit the particular requirements of your business while ensuring you are fully compliant with your obligations under employment legislation.
For further information please contact Aoife McCarthy or Gráinne O’Donovan of Douglas Law Solicitors on 021 489 7256 or by email at firstname.lastname@example.org