Opinion

New employment issues have arisen over recent years due to the increase in incidents involving the use of social media.  Sites like Facebook, Twitter, LinkedIn and even Gmail have put a new spin on problems arising in and out of the workplace. 

Employers need to be aware of the risks associated with social media and employees need to understand their rights and obligations when using these websites in the employment environment.  Employers also need to understand what their options are in terms of dealing with issues that arise out of the use of social media by employees both in and outside the workplace.   The most common problems generally arise in relation to:

Employees posting disparaging or offensive comments about their employer or colleague on social media sites; or
Employees using social media sites at work either inappropriately or too often. 
Use of Social Media Outside of Work:

The line between peoples’ professional and private lives has blurred.   Employers are now faced with dealing with problems caused by the use of social media in what would otherwise be considered an employee’s private life.  The Employment Relations Authority and case law have shown that the deeply ingrained principles of employment law can and will be applied in the online context. 

Imagine a situation where two co-workers are having issues at work.  Worker A says some nasty things to Worker B in the tea room, but once Worker A gets home, she decides to post derogatory statements on Worker B’s Facebook page.   Worker B is most upset by everything that has happened and she raises a complaint to her employer about the comments made both at work and on Facebook.  

Is it fair to investigate or reprimand someone in an employment context when they are merely expressing themselves in a forum away from work?  The Employment Relations Authority seems to think that in some cases Facebook comments can be considered more serious when they show that the worker’s reactions to workplace incidents were not left at work.  

In situations like the one described above an employer is entitled and often obliged to investigate matters occurring on social media if the issue relates to a worker’s health and safety in the workplace.  
Another scenario is where an employee posts derogatory statements on Facebook in reference to their employer.  

In one case an employee described her role as being “a very expensive paper weight” and that she was experienced in the “art of time wasting, blame shifting and stationery theft.”  The comments made had the potential to bring the employer into disrepute or at least make them appear unprofessional, however is this a justifiable ground for dismissal?  Unfortunately for that employee, she had previously breached the Code of Conduct in a different disciplinary matter resulting in a final warning on her record.

Clearly, the trust and confidence between the employee and employer was damaged and potentially irreparable.  This case identified that often Facebook comments in and of themselves do not justify dismissal, but when coupled with other disparaging behaviour dismissal can be deemed appropriate. 

How restrictive do employers need to be in terms of social media policy in the work place?  

Cases show that social media users should be wary of accessing these sites whilst at work; however it is arguable that the use of sites such as Facebook and Twitter can actually be beneficial for growth of a business or for marketing purposes.  This creates further confusion as to how employers can police social media usage in the workplace. 

In order to combat the problems arising from employee use of social media at work, employers can:

Block certain sites in order to minimise time wasting; 
Set time limits for use of sites like Facebook, i.e. in the lunch hour only;
Develop and implement policies, which can be relied upon by an employer if an employee breaches it.   

It is not as easy as it seems.  Monitoring staff use of social media and the internet has become more difficult due to the increase in smartphones and peoples’ ability to access the internet from just about anywhere.   

Employers need to be conscious about including policies surrounding the use of social media in and out of work.  

Employees need to be clearly informed of what is, and is not, acceptable.  

Identify expectations and boundaries but also specify the consequences of any breach.  Most importantly ensure these policies are followed. 

Cases have demonstrated that employers can sometimes take social network posts that occur away from work as a part of their decision to dismiss an employee for serious misconduct.  However, at this stage in the game there has been no set test case establishing at what point a Facebook or any social network comment damages the trust and confidence between parties or brings the employer into disrepute.  

Social media usage is growing rapidly and it is anticipated Employment Law in this area will likely follow suit.  

Alexa Mihailoff -Staff solicitor

Preventative measures such as updating your business' policies surrounding employee’s use of social media is a simple step but could make all the difference. For further employment advice, contact Alexa Mihailoff at Billings on AMihailoff@billings.co.nz