From sharing Instagram reels of an employee asking coworkers about their favorite products to uploading videos of staff hopping on the latest TikTok trends, featuring employees on a company's social media has never been more popular.
It sounds harmless, but what happens when a video goes viral or attracts negative comments? Or if the content gains further reach on different platforms with wildly different audiences, like X (formerly Twitter)? The legal implications can be significant.
This trend also raises important questions regarding whether employers can force employees to participate in social media content, and what can they do if an employee refuses.
Key considerations for employers
Employers planning to involve staff in their social media strategy or marketing should keep these points in mind:
- limit the risks: Be mindful of the legal ramifications of featuring employees in social media content or filming in the office. Protect confidential information visible on computer screens or whiteboards, and establish clear procedures for obtaining consent to safeguard employee privacy and confidential information
- clearly define employees' social media duties: If an employer is seeking to feature its employees in social media content, this should be reflected in the employee's position description. If an employee is unaware that creating or appearing in social media content is part of their formal duties, employers should be prepared for the possibility that some staff may decline to participate
- proactively support employees: Ensure employees know where they can raise concerns or seek help related to their social media involvement.
Can an employer direct an employee to participate in a video for social media?
Out of the blue? Probably not. The general view is that employees are only obliged to follow directions that are both lawful and reasonable. However, an employer's direction for an employee to participate in and be filmed for a social media video can be lawful and reasonable if it meets certain criteria.
First, the request must be lawful. This means it should not require the employee to do anything illegal, or to perform duties outside the scope of their employment. Employment agreements which contain a broad obligation to "perform such other duties as the employer may reasonably direct from time to time", of which many do, is likely to support a finding that asking an employee to be in a social media video may be considered a lawful direction. Whether asking an employee to be in a social media video falls within the scope of their employment is a question of fact and degree.
Second, the request must be reasonable. Reasonableness is assessed based on the specific circumstances, including the nature of the employee's role, established workplace customs and the terms of relevant instruments like modern awards and enterprise agreements. An employer does not need to prove that the request is the best or most appropriate course of action, only that it is reasonable in the given context.
When it comes to social media, it is important to consider the impact on an employee's privacy and personal life. If creating social media content is a regular part of their job duties, this can support the reasonableness of the request. However, if these activities fall outside of their usual responsibilities, the request may be viewed as less reasonable.
What if an employee refuses to participate?
Whether an employee can be disciplined for declining a lawful and reasonable direction to participate in social media content will depend on the facts at hand. An employer should exercise caution to avoid finding themselves exposed to a claim for adverse action, or unfair dismissal under the Fair Work Act 2009 (Cth) (Fair Work Act).
If an employee has concerns about being filmed, the employer should address them appropriately. Declining a request to participate in a TikTok video could potentially be seen as exercising a workplace right if the refusal is framed as a complaint or inquiry about the employee's employment. For example, if an employee refuses due to privacy or workplace safety concerns, this could be viewed as a legitimate complaint and exercise of their workplace rights.
Can an employee be asked to 'like' their employer's social media posts?
Whether an employer can require employees to 'like' their social media posts again hinges on whether it is a lawful and reasonable direction. Employers have the right to protect their reputation and the security of their business, which can extend to regulating employees' social media activities during and outside of work hours. However, any such policy must be clear, well-communicated and should not overreach into any employee's personal life without proper justification. Given that this would control, to a degree, employees' personal social media accounts, such a request may be seen as less reasonable.
What risks should employers consider before posting content featuring employees?
For many marketing teams, the idea of a TikTok video going viral is a dream come true. However, the reality can be much harsher if the video attracts negative attention – and when content is posted by the company's account, the employer may ultimately be held accountable for any backlash.
One major risk is the potential for sexual harassment from outside the company. Since December 2022, employers and persons controlling a business or undertaking have had a positive duty to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment. While this duty generally applies within the office or workplace, posting on social media can expose employees to harassment through comments, reposts and other online interactions. In March 2023, the Fair Work Act adopted an express prohibition on sexual harassment which attracts penalties for non-compliance.
Additionally, there are significant risks to employees' health which could lead to workplace injuries and subsequent WorkCover claims or common law damages claims for psychological or physical harm from trying the latest TikTok trends. With employers now obligated to prevent psychosocial hazards, one might wonder whether frequent requests for 'volunteers' or the risk of being filmed in the background of a video without consent could be considered a psychosocial risk.
Employers should be mindful of how they handle complaints about potential psychosocial hazards related to content creation. While workers' compensation claims are familiar territory for many businesses, there is a positive duty to manage the risks associated with these hazards. How employers respond to such complaints could be relevant for future compensation claims. What is reasonably practicable for a small business will differ from what is expected of a national or multinational company.
As this is a relatively new employment concern yet to be considered by the Fair Work Commission, employers should focus on best practices and proactively address any foreseeable risks to workplace health and safety when involving employees in social media content creation.
What if an employee is filming themselves at work for their own social media account?
When an employee films content for their personal social media at work, it can create challenges for the business's public image. Employers may be able to issue a warning or ask the employee to remove the post(s).
Whether such a request is lawful and reasonable will depend on the specifics of the content and the context. For instance, the Fair Work Act and state discrimination laws prohibit adverse action based on an employee's religious or political beliefs. If the content touches on these topics, employers should be mindful that their actions comply with these laws.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.