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Blurring the lines with social media

Posted on by from Taylor Vinters LLP

Why is social media causing challenges for HR professionals? Anita Rai, employment law partner at Taylor Vinters LLP, expands.

Today, you would be hard pushed to find an individual or business that does not, to some extent, use social media. It is difficult to comprehend that 10 years ago, Facebook was barely a year old and Twitter did not exist. Today, Facebook has over 1.49 billion active monthly users and Twitter has 304 million active monthly users, says Anita Rai. But why is social media causing challenges for HR professionals?

So why is social media such a headache for HR professionals?

Rather than company sanctioned and controlled external communications, social media has meant that employees now have access to an open communication channel with the public, clients and each other, which can be a double-edge sword for companies.

Power in the hands of employees

Disgruntled employees now have an immediate and powerful outlet for their dissatisfaction, with scope to embarrass or even harm the reputation of their employer (individual staff or the business’ brand). A memorable example is how HMV staff hijacked the corporate Twitter account to live tweet a round of redundancies and vent their anger (January 2013).
 
Even private communication can be made public; barrister, Charlotte Proudman tweeted an email she had received from a senior partner in a city law firm, which she found to be inappropriate, in which he described her LinkedIn picture as “stunning”. The tweet went viral and was picked up by the national media too. Ms Proudman commented that LinkedIn was supposed to be a professional networking site and should not be treated as a dating site akin to Tinder. In the blink of an eye, the reputation of a senior partner has been called into question and that of the law firm as a whole. 

Blurred lines: professional versus personal

The professional and personal lines are becoming more and more blurred. While most social media platforms have settings limiting posts to ‘friend’ connections or broadening posts to the public (and are searchable; Tweets are now included in Google searches), treading the line between personal opinion, company embarrassment or defamation is increasingly tricky.

It is unrealistic and disproportionate, not to mention invasive and potentially unethical, to monitor the personal activity of employees online. Say an employee expresses a personal but unflattering opinion of their boss to an audience of friends on Facebook. Let’s assume one of those Facebook friends is also a colleague at the company, and brings this post to the business’ attention. What can be done about this?

Query whether the business has a social media policy that is linked to its disciplinary policy, and covers personal use of social media. If yes, is the comment serious enough to justify intervention and what if the employee argues that what they choose to share on their own Facebook page is none of your business and that they have the right to freedom of speech? Or what if the same employee points you in the direction of another 20 employees who are all making similar remarks on social media? Would you then have to discipline them all in the same way? If all 20 employees made similar remarks about the same colleague, at what point does this constitute cyber bullying?

It is, without doubt, a minefield. 

Often, by the time the offensive remark has been deleted or corrected, there is no guarantee that a screenshot of the image (if not initially a public post) has not been captured and shared publicly, or if on a public platform such as Twitter, that the post has not already been retweeted or ‘favourited’. That spiral effect cannot be stopped.

Taking action

With social media, prevention is better than cure. Here are some practical tips for businesses to minimise social media mishaps:

1. Have a clear social media policy that is regularly updated and that is linked to your disciplinary and harassment policies. Incorporate professional and personal use of social media. 

We find that the majority of businesses do have a social media policy, but that it is out of date and typically does not cover personal social media use. Also, keep reminding staff of the dos and don’ts in the policy; send an email reminder to all staff summarising (and attaching) the social media policy on an intermittent basis. 

2. Consider incorporating key provisions about social media into your standard employment contract, with the more detailed policy remaining in the handbook. If the business has, for example, a blanket ban on using Facebook at work, this could be set out in the contract of employment which can be more of a deterrent than burying it in a social media policy within a lengthy handbook. 

Bear in mind, though, that outright bans are hardly worth the paper that they are written on as employees will still access social media via their own personal devices. 

3. In the employment contract, refer to misuse of social media in the (usually non exhaustive) list of possible actions that could constitute gross misconduct, and also prescribe privacy settings linked to confidentiality obligations. 

It is becoming increasingly commonplace to see, both in employment contracts and settlement agreements, provisions about providing passwords to LinkedIn, deleting contacts and undertaking not to reconnect with them for a period of time once an employee leaves a business. Query the enforceability of such provisions, but they may be a good deterrent.

4. Hold regular compulsory training for all staff, from director to ‘shop floor’ on how to use social media. Use this as an opportunity to provide examples of good and bad practice from the company’s policy.

5. Where practicable, have a designated team who sporadically monitor social media usage across the business. Ensure that the team are empowered to take immediate action, if needed, and to reprimand any culpable employees. Having a small team means that sanctions are far more likely to be consistent, which is also key to minimising legal claims.

6. Consider having a Gated Enterprise Social Network (ESN) to provide a safe online environment for employees to have a voice, but where the audience is internal. These are becoming commonplace (Yammer, for example).

Anita  Rai

By Anita Rai

Taylor Vinters LLP

Anita Rai is an employment law partner at Taylor Vinters LLP.

 Taylor Vinters LLP

Taylor Vinters LLP

Taylor Vinters LLP is an international law firm in London, Cambridge and Singapore, specialising in technology, investment and private client.

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