Speaking with My Business in response to claims that businesses are controlling the lives of their employees through the use of strict contract terms, the managing director, national workplace at Australian Business Lawyers, Joe Murphy, offered some advice to employers about how to manage the risks associated with social media usage by their employees, both at work and outside of it.
“Employers have found out the hard way, through decisions that are well documented in the Fair Work Commission and other tribunals and in courts... that employers need to do certain things in order to be able to... manage the appropriate conduct in the workplace, and in connection with the workplace,” he explained.
Policies and contracts
To do this, Mr Murphy recommended employers develop and implement a formal social media policy, to set the precedent of what is and is not acceptable from employees online and/or include such clauses in employment contracts.
“If you are on social media and it is reasonably apparent, or will be reasonably apparent, that you are employed by a particular organisation, then that gives rise to a risk to the reputation of the organisation,” he said.
“That may — in most circumstances — enliven the employer’s ability to take into account conduct outside the workplace, that occurs outside of the work hours.”
Mitigating risk requires action, not just words
Mr Murphy said that while social media policies or clauses in employment contracts are a good start, they do not provide blanket scope for employers to take disciplinary action, with Fair Work Commission rulings suggesting any perceived breach of the policy and subsequent actions must be “reasonable”.
He also urged employers to take a proactive approach in ensuring their workers have read and understood their obligations and also why they are in place.
“It doesn’t necessarily need to be in the contract in all circumstances; certain things will go into a contract. But the real issue here is whether or not the employer has properly communicated to employees what is appropriate and what is not appropriate,” Mr Murphy said.
“And because there is this grey area, then it’s really important that you also talk to the employees, not about hard and fast rules, but also about why it is that these policies or the contractual provisions exist in their contract to manage their behaviour, or at least to have them be conscious that the way they behave outside of work can affect their employer and can affect their employment with their employer.”
Not just reputation management
Brand reputation is only one of the aspects to be considered around social media usage by employees, the lawyer explained. There are also health and safety ramifications surrounding mental health and bullying.
Mr Murphy said that the need to implement a policy “becomes less grey and more black and white in circumstances where an employee has, for example, others who are in the workplace linked with them on social media”.
“Whatever their connection is and whatever the platform, if they have other employees [linked with them], then it is incumbent on the employee to be aware that [it] does expose their employer to some risk, or at least them to some risk that they could be engaging in conduct that could affect their employment.
“The employer has to manage that, and can only really manage that through its contracts, and the associated policies that sit around the contract, in the way that people conduct themselves in the workplace.”
What happens when something goes wrong but there is no policy in place?
Mr Murphy explained that employers can find themselves in a tricky situation should an employee create a damaging incident for the business, but there is no policy or clarification in place.
“If you don’t have a policy and you haven’t trained your employees or created awareness about their behaviour outside of the workplace, then this creates a riskier environment for the employer if they are seeking to take disciplinary action against an employee who hasn’t been made aware of how they should or shouldn’t behave in public, in circumstances where it can have an impact on their employment,” he said.
“If they do take action against a person in those circumstances, they are not going to be able to automatically rely on a common sense-type approach.”
He concluded: “The reality is that if you want your employees to understand and behave in a particular way, or understand that certain behaviour will not be tolerated both in and outside the workplace, then ideally you will have communicated it to them via policies and via training if you can.”