Australia: Enterprise Update: Employee use of social media in Australia – striking the balance

Last Updated: 13 May 2011
Article by Stuart Kollmorgen and Andrew Crocker

The past few years have seen an exponential increase in the uses and forms of social media. Facebook, Twitter and You Tube can be accessed via desktop, laptop, web book, smart phone or tablet. Increased use of "Smart TV's" and media centres has fused our use of broadcast and broadband, introducing social media into our lounge rooms and TV screens.

Facing this ease of access, many employers have abandoned policies prohibiting access to social media. Instead, employers are now focusing on how they can reasonably (and legally) restrict access to and use of social media by employees (and contractors) in ways that may damage their business.

We have been advising employers that they need to ensure that they have policies in place adequately managing employee use of social media that touches the workplace.

The accelerated use of social media is increasing the permeability of workplace and personal behaviour; an employee's non-workplace use of social media may well have a workplace impact. This has resulted in employers having to walk a fine line in determining what level of restriction is appropriate.

Fundamentally, an employer will want a social media policy to protect it from employee use of social media in a way that actually or potentially damages the employer's business.

For example, NSW public school teachers (but not students) are now permitted to access social media in the classroom. The Department of Education and Training's social media policy applies "...to employees' work use and personal use of social media at any time, when it has a clear and close connection with the department."

As policies can apply to employee conduct outside the workplace, they may attract employee / representative feedback. For example, responding to feedback from the Finance Sector Union, a major Australian trading bank recently clarified employee social media obligations to act in the Bank's best interests and report third party material disparaging the Bank. It is important for enforceability of the policy to identify how and where employee use of social media touches on the employment relationship and may impact the employer.

Further concerns are raised by social media use that indirectly threatens an employer's business.

If an individual is prominently connected with a particular brand or company, for example as a client facing staff member or a brand champion, the individual's use of social media in his or her personal capacity may impact on the employer's business (e.g. if the individual uses social media to make comments or post images perceived by the employer's customers / clients as offensive, this may have a negative impact on the employer's business).

The pervasiveness of social media in the workplace and potential impact on an employer's business makes it essential for employers to consider managing employee use of social media through appropriate policies.

What employers require in their social media policies will vary in line with several factors including the size of the organisation, use of social media by the employer as a business tool and public exposure – it is important that employers turn their minds to what they require in a social media policy and that the policy is tailored appropriately.

Further information

We will be running a Critical Issues in Employment seminar to assist clients further explore issues. The seminars will be run in each of our Australian offices on the following dates:

Brisbane Perth Sydney Melbourne
8 June 21 June 21 June 22 June

We will cover:

  • potential risks
  • an international perspective on social networking – and the Australian impact
  • employers' rights to monitor and regulate employees' social media use
  • employees' obligations when using social networking media
  • social media networking policies – what to include
  • employer risks in using social media in the recruitment process
  • the interaction between social media and privacy laws
  • recent case law involving social media issues in the workplace, and
  • how to prepare yourself for potential litigation.

Please keep an eye out for our invitation in your inbox over the coming weeks. This seminar will fill up fast so be sure to respond quickly.

In the meantime should you have any questions or require further information please contact a member of our Employment team.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Stuart Kollmorgen
 
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