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Social Media Policies: Because Loose Tweets Sink Fleets!

WWIII_posters_01ABC Radio's Law Report (@LawReportRN) with Damien (@damien_carrick) Carrick this week was a fascinating examination of the implications of Social Media on the already delicate relationship between employer and employee.  With expert guests from law firms Herbert Smith Freehills and Slater Gordon, the 25 minute show examines the legal and HR ramifications of four cases where employees had been terminated after alleged Social Media indiscretions.  It is well worth listening to, but above all it strongly emphasises the need for employers to protect themselves with a Social Media Policy.  (You can Listen to the Podcast of the show here)

The show looks at the way in which, essentially, Social Media has "collapsed distinctions between work and home life" and how most employers face an enormous challenge to keep up with pace of change.  In effect employers have been "ambushed" by Social Media and if you are struggling with this topic, you are not alone.  Even if you are a business which doesn't consider itself having anything to do with Social Media, you can bet that your employees have a different view!
None of the cases discussed are cut and dry and when you listen to them all you realise just how complex this area is.  It is at once frightening and reassuring because the issues addressed are bigger than all of us!  The cases addressed are briefly:
  1. An employee of the Australian Department of Immigration who anonymously  tweeted her criticism of government policy because she saw herself as "free as a private citizen in my own time" to do so.   But lost an appeal against her dismissal, which she regarded as unfair, because the court ruled that her contract AND the Department's Social Media Policy made it very clear what was expected of her.  While many issues about personal and public political views and freedoms of political expression; the existence of clear guidelines - in this case - protected the Department.
  2. There were two other cases to do with a LinFox employee who made offensive comments on his Facebook page but his termination was overruled; and conversely a Good Guys employee who lost his appeal against termination for a similarly offensive Facebook rant about a pay dispute.
  3. Finally there was a high profile case of an employee of a interior design firm who was dismissed for promoting his moonlighting consultancy to his employer's clients via LinkedIn, effectively exploiting his company's "Imprimatur" for his own profit.
 All four cases are fraught with no end of complications and you could debate their various issues until the cows come home.  But what emerges most clearly is the responsibility of employers to make it clear what their expectations are and where to draw the line:
"Employees don't know where the distinctions are.  It needs to be clearly explained to employees where the boundaries are and what the expectations are."
Social Media Policies are not only there to protect employees, but are also the most effective way to protect yourself as an employer not only against unfair dismissal laws, but also against a hatful of potential harassment, discrimination and bullying scenarios that can emerge as a result of Social Media abuse by employees, for which you can be liable.  From a legal perspective, despite the minefield of legal and social issues, it greatly helps clarify the situation.  Implementing a wide ranging Social Media policy - but also, ideally, instituting an on-board training course to help emphasise the policy - is the most elementary way available to protect your business.
Furthermore, listed organisations need to be careful to explain to employees about what information is sensitive and what can and cannot be shared as the regulations around the stock exchange are very stringent and carry at times quite harsh penalties.
Traditionally, many businesses think that the best way to protect themselves against this kind of risk is to ban Social Media at work altogether - however this is no longer a realistic, or even sensible, position.  As the Social Media opportunity for business increases and the great advantage to gain competitive edge is better understood, a Social Media ban is being seen as an ever more Luddite approach.  As one of the legal experts on the show remarks, it is very hard for a firm to ban Social Media use by employees if the marketing department is asking them - and customers - to "Like" the company Facebook page.
If you are looking to create your own Social Media Policy, there are a number of resources online to assist you:
 I discuss many of these issues also as part of a Webinar I conducted recently with Risk Management Consultancy Protiviti which I wrote about on this blog.
(One caveat the show does stress though is be careful not to be too draconian, as in this case of The Commonwealth Bank who was forced to relax its initially very stringent rules.)
How do employees protect themselves?  The experts recommend the "Common Sense Test" that includes tips such as "don't friend your boss" on Facebook but more importantly be careful about your privacy settings.  For instance you can change your settings on Facebook so that should someone "tag" you in a  photo, you are asked to approve it.  This is particularly relevant considering the plethora of cases where employees that have taken the day off sick have then been "tagged" in a photo waterskiing or at the cricket!
Finally, the two lawyers agree that employees should observe the "Nana Policy" - "imagine if your Nan saw it, what would she think of it?"  This is sage advice I think!
Artechulate consults clients on the production of customised Social Media Policies.
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