The world of social media is growing exponentially, as is its impact on all stages of employment, from recruitment to post- termination. Employers who fail to keep abreast of these developments may find themselves breaching laws and/or ethical standards, either directly or through the conduct of their employees. This article outlines the relationship between social media and the workplace at each stage of employment, and considers the steps employers can take to ensure compliance with laws and ethical standards, and still reap benefits that social media provides.
Social media has significantly altered the recruitment process. Sites such as LinkedIn provide a wealth of recruitment opportunities, bringing recruiters to candidates and candidates to potential employment opportunities. 'Social media vetting' has become commonplace, with recruiters using social media as a tool to determine the suitability of prospective candidates. In 2011, 91% of US recruiters surveyed admitted to using social networking sites to screen applicants1. This screening practice has been taken further by some employers, requiring candidates to befriend third parties on Facebook, or demanding the applicant's login details during interviews in order to gain full access to their accounts.
What are the legal ramifications for such practices? Obtaining information in this way may be a breach of the Privacy Act 1988 (Cth),might lead to an adverse action claim under the Fair Work Act 2009 (Cth), may equate to misleading or deceptive conduct in breach of the Australian Consumer Law or may contravene professional codes of conduct and ethics. Additionally, it may even give rise to a discrimination complaint, as a potential employer may not be able to demonstrate that the information sourced from the social media site (such as race or sexual preference) had no bearing on the organisation's decision in relation to the applicant. Organisations must also be aware of the terms of the social media sites, which might prohibit unauthorised use of the information.
The key to avoiding these risks, is to obtain the written consent from the job applicant, and to only gather information from the social media site with their full knowledge. Organisations should also keep a detailed record of the information used in the recruitment process. However, even with these safeguards in place, it is a risky practice, particularly with respect to the area of discrimination. In any event, it may not remain an unbridled recruitment tool- jurisdictions in the US are currently introducing laws which restrict the practice.
The use of social media during employment can have implications for professional reputation, productivity, employee conduct and discipline, communication and harassment.
Employers can find themselves being held vicariously liable for the conduct of their employees on social media sites or have their reputations damaged as employees use social media to post negative comments about their employer. Even if an employee is using social media outside of the office and office hours, and on the employee's own computer, it may still impact the employment relationship and be the employer's responsibility. This is particularly relevant in the area of bullying and harassment, and the Courts have held employers vicariously liable for offending conduct by employees on social media outside of working hours, in circumstances where there has been a requisite connection to the employment.
So what's the solution? Rather than placing a blanket ban on all social media use in the workplace, employers should develop a clear social media policy, which sets out expectations, boundaries, obligations and conditions of use. Employees should be made aware that even conduct outside of the office could be in breach of the policy if it breaches other workplace policies, such as bullying and harassment of other staff.
Social Media and Termination
The courts are seeing an increasing amount of unfair dismissal claims brought as a result of termination relating to social media use. In Richard O'Connor v Outdoor Creations  FWA 3081, an employee terminated for excessive social media use during work hours succeeded in claim that the dismissal was unfair. However, in Dover- Ray v Real Insurance Pty Ltd  an employee failed to demonstrate that her termination was unfair, in circumstances where she negatively posted comments about her employer during employment, and refused to remove the posts when requested to do so.
Again, it seems that the way to avoid ending up in the courts, is to set clear boundaries during employment, through the use of a social media policy. This was confirmed by Fair Work in late 2011, in a case where an employee was reinstated following termination for derogatory comments posted about his managers on his Facebook page. In its reasons for reinstating the employee, Fair Work relied in part on the fact that the employer did not have a social media policy in place.
So, get cracking on developing a clear and comprehensive social media policy, and reap more of the benefits that social media has to offer, without the negative consequences.
1Hall, Matthew & Marshall, Kelly "Australia: Following candidates on social networking sites: A minefield" 19 August 2012 www.mondaq.com cited 21 August 2012.
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.