Social networking and your business

Social media and social networking sites such as Facebook and Twitter are proving to be a minefield for employers. It’s not uncommon for employees to post unfavourable comments on their sites about their bosses, working conditions, co-workers and pay. However, employers wishing to contain this type of negative exposure have limited legal options.

In a recent case, an employee posted comments the following comments: “Xmas ‘bonus’ alongside a job warning, followed by no holiday pay!!!! Whoooooo! The Hairdressing Industry rocks man!!! AWESOME!!!”. The employee’s security settings were set to private (which means that only her friends can see her comments), however she did not anticipate that her comments would be forwarded by one of her friends to her employer. As a result of these comments, her employment was terminated on the grounds of “public display of dissatisfaction of base employment – Facebook”, in addition to some other reasons including punctuality, removal of property from the premises and rescheduling of clients.

The termination was deemed to be unfair by Fair Work Australia on the grounds that the employer wasn’t specifically named; the privacy settings on the Facebook page meant that the only her friends should have been able to read her comments; and the comments hadn’t damaged the business in question.

The case is a timely reminder that employers don’t have the right to pass judgement on employees’ behaviour and action outside of work hours. In order for a termination to be considered fair, the comments posted on any social media site would have to actually name and provably damage the business.

There are ways for an employer to circumvent any potential issues arising from social media postings – a social media policy can help to ensure both employers and employees understand their responsibilities and obligations. (The following suggestions are by Charles Power, Editor-in-Chief, Employment Law Practical Handbook, www.employmentlawhandbook.com.au.)

1. Include a clear definition of “social networking”. Make it clear exactly what you mean by social networking – you can include names of sites like Facebook and Twitter if you like. Be careful though – you should also make it clear that the policy is not just limited to the sites listed.
2. Include information about what is not acceptable social networking behavior. In the policy, you should make it clear that employees cannot use social networking to be critical of the business, their employer or their co-workers, or to refer to clients or customers in any way. You should also remind them that social networking should not interfere with their work.
3. Include information about what is acceptable social networking behavior. For example, you should mention when and for how long it is acceptable for employees to access social networking sites at work.
4. Include a reminder about your employees’ responsibility to protect your confidential information online. This is especially important if your business uses sites like Facebook and Twitter for networking.
5. Set out the consequences for violating the policy.
6. Set out the process by which employees will be disciplined if they breach the policy.