employee social media policy for small business

Guidance for employees on acceptable use of social media

Elias Kheir

Social media policies are not just for tech companies, large corporates or government departments. Given the ever-evolving nature of technology and how people interact and businesses transact nowadays, a business should consider implementing a social media policy or at the very least social media guidelines.

Even if your business isn’t so big and doesn’t have a significant (or any) social media presence, some of your staff members definitely do.

Clear social media publishing and use guidelines can help ensure that what your staff post in their own time does not cause problems for your business.

Chances are these days more of your customers may prefer to engage with you online – COVID-19 has only hastened this trend. A recent KPMG report, for example, reports that 45% of customers predict they will mainly contact companies using digital channels. If an ‘unhelpful’ post is connected with your business, it may lead to negative publicity, and customers and suppliers deciding they would rather not be doing business with you.

Can you control what employees say in their own time?

This is still a somewhat grey area in the law. That said, tribunals increasingly accept that employment agreements can require employees to avoid acting online in a way that may harm the employer’s business reputation, breach the business’s other policies and/or cause it to fall foul of the law.

Nearly ten years ago, in Stutsel v Linfox Australia Pty Ltd, the Fair Work Commission (FWC) found an employee had been unfairly dismissed over racially and sexually derogatory comments posted by the employee’s friends on his Facebook page. The FWC likened offensive social media posts to conversations with friends in a pub or café, rather than public comments that could reflect on an employer.

The legal position has evolved as social media becomes ubiquitous and social media literacy increases across all ages in our society. Today, whether a social media post will be caught by an employment agreement will in most instances depend on whether there is a sufficient connection to the workplace. It is also important for an employer to be able to show they had appropriate and relevant policies in place and that their employees were, or should have been, aware of them.

Case study: An offensive Facebook post

A recent unfair dismissal claim involved a sexually explicit meme posted to an employee’s personal Facebook page.

The male employee admitted that he created the meme using company photos of himself and a female colleague. He then posted it to his own Facebook page, where it was seen by other current and former employees. The female colleague knew about the meme and had not initially minded it being posted. However, she said she became concerned when she realised how many people connected to the workplace had seen and shared it. She asked her male colleague to remove it, which he did, before he then posted a second offensive meme which appeared to refer to the request to remove his first meme.

Serious misconduct

After an investigation, the employer terminated the male employee’s employment on the grounds of serious misconduct.

They argued he had:

  • used his colleague’s image in a way that was defamatory, inappropriate and demeaning, and this had repercussions for her, as well as for the business;
  • committed sexual harassment and a breach of the company’s sexual harassment policy;
  • breached the company’s social media policy;
  • misused company property (the photos);
  • breached the terms of his employment contract which required him to act in the company’s best interests at all times and comply with all the employer’s policies.

Was there sufficient connection with employment?

Even though the post was on a personal Facebook page, the FWC agreed there was sufficient connection with his employment for the employer to act. The photos were company photos and the post had been seen and shared by multiple colleagues and former colleagues. The company was right to be concerned about the effect on other employees and on its own reputation.

Were the appropriate standards of behaviour clear?

One challenge for the employer was that, as the FWC noted, the organisational culture ‘fell considerably short of the standards expected of a workplace’. The FWC heard evidence that suggested the previous owners of the business had tolerated a culture in which such sexually explicit, sexist, racist, homophobic and ableist behaviours were not punished.

The sacked male employee also claimed he thought the social media policy only affected his posts if he identified himself as an employee. He had taken steps to remove references to his employer and workplace.

The FWC agreed that there may have been ‘some opacity’ about the consequences of his conduct. Nevertheless, it accepted the new owners of the business had taken steps to improve the workplace culture, implement social media and sexual harassment policies and provide training on these.

The FWC upheld the termination.

What should your social media policy cover?

These examples demonstrate how having a clear social media policy is one important protective step an employer can take. Everyone in your organisation – from the directors through to the casual staff – needs to understand clearly what is expected of them.

Confidentiality and privacy

It’s important to remind staff they are required to keep your business information confidential and that they must protect the private information of your customers.

Intellectual property

Make sure staff also understand they need to avoid sharing your business’s intellectual property (including forms, images, photos, policies etc) in online forums.

Protecting your business

As shown in the examples mentioned before, an employee that is terminated for a social media post may bring an unfair dismissal application against his/her employer. A business which has a clearly articulated social media policy can reduce the legal risk to the business in the event of an unfair dismissal application.

Educating your employees

A social media policy will assist employees in understanding the legal risks, both to the business and the employee, involved in the use of social networking platforms. By setting guidelines and parameters around the use of social media a business can minimise the potential harm to employees and the reputation of the business.

Bullying, harassment and discrimination

Make it clear and remind employees that behaviour such as bullying and vilification that are inappropriate in the workplace, are equally inappropriate online. Make it clear that posting something, or liking a post, that falls within this category will likely lead to disciplinary action for the offending employee in accordance with your workplace behaviour policies.

Defamation

Remind staff that posting, liking or sharing posts that could be defamatory might mean they find themselves accused of defamation, which can involve costly legal proceedings not just for them but perhaps the business too.

Training

The best case is that employees understand clearly what is expected and refrain from inappropriate social posts. The next best case is that the employees have been shown, told and taught exactly what is expected of them.

Then if something does happen and you need to take disciplinary action, it will be easier for the business to show that it had a robust and appropriate policy in place and that the staff were aware of the policy and what it contained.

 

Elias Kheir is a lawyer in Pryor Tzannes & Wallis’ Corporate and Commercial team. His practice focuses on commercial transactions, including business sale and purchases, business structuring and restricting and retail and commercial leasing. Elias’ clients value his advice for its pragmatism and simplicity.

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