The role of social media in the employment sphere is continuing to baffle employers, who are struggling to keep up to date with the changing landscape and all the employment law issues that accompany something so pervasive in our everyday interactions.
Following on from a recent in-house seminar held by Silverman Sherliker’s Employment and Pensions team, Senior Associate Victoria Russell elaborates on her presentation.
Social media – including blogs, social networking sites, business networking sites, digital media networking sites and database sites – can enable employers to promote their brand in a wide forum, as well as allowing their employees to work flexibly, keep in touch and quickly respond to clients. It is also a proven method of generating new clients, which can be exciting for employers.
However, there are less positive aspects for employers when considering social media. These include the time thief – the problem of employees who are excessively using social media sites during the working day – and issues of cyber bullying, discrimination, defamation, invasion of employees’ privacy, freedom of speech, ownership of client contact lists and the fairness of social media related dismissals.
Increasingly social media is used in the recruitment process, with adverts being placed on social media sites and employers using social media to screen or vet candidates by viewing their pages. Most of these pages contain photographs of the candidates and it is potentially possible to learn a candidate’s race, approximate age, family status, religion and sexual orientation from such vetting. This knowledge exposes an employer to questions about their decision-making process. An employer can be sued for discrimination because of their conduct in the recruitment process, even if the employee is not selected for the position. Care must be taken to document the decision-making process and to ensure that any vetting search using social media is proportionate and justifiable.
Social media related dismissals are throwing up a variety of judgments and all tend to be quite fact-specific. A common theme in the judgments is that comments posted on a personal site in the employee’s spare time can still be considered by an employer when deciding to dismiss. The usual rules apply when disciplining and dismissing an employee even when it is related to social media, and it is vital that an employer carries out a thorough investigation of the issues in question. Knee- jerk reactions must be avoided at all costs.
Furthermore, an employer who is able to point to a breach of a social media policy is always going to be in a stronger position when it comes to justifying why the employee’s actions are unacceptable. It is therefore important to put something in place which will assist the employer if disciplinary procedures are undertaken.
The issue of cyberbullying is something which is also causing a headache for employers, as they can be vicariously liable for the bullying actions of one employee against another, even if that bullying takes place in the social media sphere and outside office hours.
Again, there are a variety of decisions which point to the importance of having a social media policy in place that makes it clear what conduct is and is not acceptable. Many of the cases have included consideration of the issues of free speech and the right to privacy, and it is always important that a balance is struck when an employee is posting a comment on their own social media page.
Employers need to make clear the distinction between work-owned sites and employee-owned sites and ensure that the employee understands comments posted on their own sites may still be reviewed by the employer.
We have previously written about the issue of enforcing post-termination restrictions for ex-employees who contact clients after leaving and inform them of their new employer. Case law is very clear about what constitutes solicitation – it has traditionally meant that an employee who, within the prescribed timeframe, writes to their former employer’s clients telling them about his new employer will be in breach of the non-solicitation clause.
It is less clear, however, if an employee has solicited clients simply by updating his employer status on a social media network to which clients are linked. There have been no significant cases on this point to date, but there seems to be a general feeling from obiter comments that the manner in which people can be located online means a client would actually be able to locate an employee quite easily in any event, so employers should instead focus on strengthening the non-dealing clause in their restrictive covenants. This will provide them with greater protection, as it prevents all dealing with former clients regardless of who contacted whom.
The speed with which social media has developed is certainly proving challenging for employers. Therefore, a carefully-drafted social media policy will assist in ensuring an employer has set the boundaries for employees and made clear what is expected of them. Discussing the policy with employees is essential, as they too are navigating this new landscape and will probably not be aware of just how much control an employer is entitled to exert over something which they will wrongly assume has nothing to do with their employer.
Added: 4th July 2013