Australia: No social media policy? "Not sufficient", says Fair Work Australia

Last Updated: 18 February 2012
Article by Angus Macinnis

Focus: Why employers need to have social media policies.
Services: Commercial, Employee & Industrial Relations.

Any employers who were in doubt about the correct answer to the question, "Does my workplace need a social media policy?" should doubt no longer. In a decision handed down just before Christmas, Commissioner Roberts of Fair Work Australia reinstated an employee of Linfox who had been dismissed for material which the employee had posted on Facebook. Commissioner Roberts noted that Linfox did not have a social media policy either at the time of the employee's dismissal, or at the time of hearing. Instead, Linfox sought to rely on its induction training and handbook. The absence of a social media policy, Commissioner Roberts observed, was "not sufficient".

So, the question has been answered; employers need to have social media policies. As with most workplace policies, a social media policy has a dual role. The first aim is to provide guidance to employees so that their use of social media doesn't get them into trouble (or at least, doesn't get them into trouble in a way which concerns the employer). However, if trouble cannot be avoided, the second aim of the policy is to provide a firm basis for any disciplinary action (including dismissal) which the employer considers to be necessary.

How do you put together a policy which meets these two aims? Here are some key issues to consider.

What social media use is an employer entitled to regulate?

The first step is to distinguish between social media use in the course of employment (that is, people whose job it is to manage communications in social media channels on behalf of their employers) and social media use which is not directly in the course of employment. There is a separate set of issues which arise for the people who are running your social media communications for a living (who needs to "sign-off" on particular communications, who is responsible for moderating content, and so on) which should properly be the subject of those employees' job descriptions. Guidance for employees who do social media for a living is best provided on the individual basis that job descriptions allow for; whereas social media policies, which are of general application, are more useful for social media use which occurs outside the course of employment.

If employees are using social media outside the course of their employment, is that any of the employer's business? The answer, of course, is "yes". If the social media use is occurring on the employer's computer network, or on employer-provided smart phones, the employer has an obvious interest in the maintenance of its business equipment. However, even social media use in the employee's own home and on the employee's own computer has the capacity to affect the employer and the employment relationship.

When it comes to social media use outside the course of employment, there are four broad areas in which that social media use has the capacity to affect employment (and thus, in turn, to concern the employer, and to merit attention in the employer's social media policy).

The first area is social media use which has the capacity to damage the employee's professional reputation. For example, partisan political remarks by a journalist whose reputation requires objectivity, or contact between a teacher and a student which could give rise to impression of favouritism, are relevant in this area.

The second area is social media use which has the capacity to damage the reputation of the employer. In 2009, two employees of a pizza franchise in the United States posted a video of themselves to YouTube involving (a) food and (b) acts which you would rather not see in the context of food. In the next week, the franchisor's share price fell by 10%. Even "positive" commentary can fall into this category – there have been a number of cases in which brands have been damaged by positive commentary in social media channels by "customers" who turned out to be employees.

The third area is social media use which has the capacity to damage the employee's ability to work with their colleagues. Conduct which may be harmless as water cooler gossip can take on a whole new life once posted into social media channels. Indeed, in the Linfox case, Commissioner Roberts described the employee's conduct as having "much of the flavour of a conversation in a pub or cafe, although conducted in an electronic format". If the employee had confined his conversations to pubs and cafes, he might not have found himself seeking relief from unfair dismissal.

Finally, the fourth area is social media use which breaches another of the employer's policies (for example, policies dealing with discrimination, harassment, or the protection of confidential information). If an employer is aware of sexual harassment within a workplace, the fact that the harassment is occurring via Facebook rather than in person is unlikely to relieve the employer of liability for what has occurred.

The identification of these areas in which the policy will operate is the key first step in the policy, so that employees know when they have to take their employment into account when using social media. Many of the cases which are coming to employment lawyers involve employees whose answer to their employer's concerns is, "I didn't think that was relevant to my employment". Making employees aware of what social media use is relevant to their employment, and why, is the first step to ensuring that the social media use doesn't become a case which requires the attention of employment lawyers.

How long should my social media policy be?

A good social media policy should be concise. You don't want the key messages becoming lost in a thicket of definitional waffle or buried under a mound of examples. American employment lawyer and author Jay Shepherd suggests that you need only two words; "Be professional". Closer to home, Annabel Crabb crisply summarised the ABC's social media policy at the 2011 Walkley Media Conference in two sentences; "everything you post is public" and "don't be a dickhead".

Most employers will probably find that they need more than two words, or even two sentences. After all, what "be professional" means differs between occupations. The emphasis which the policy should give to particular ways that employees can get themselves into trouble on social media will depend upon how likely that trouble is to materialise in the context of each employer's industry.

To that end, it is worth spending a bit of time making sure that your social media policy is adapted for your workplace and your industry, rather than simply using a template designed for someone else's business. Asking yourself, "what's the worst that could happen?" and then asking, "how does my policy stop that worst outcome from happening, and how does it respond if the worst does happen?" provides an opportunity to make sure that the policy has the content it needs.

What are the key issues which the policy should contain?

The first of the issues identified by Annabel Crabb, that everything should be treated as being public, is a vital component of a social media policy. In both the Linfox case, and an earlier Fair Work Act unfair dismissal decision concerning a post on MySpace (which was held to have justified the dismissal of the employee) the employees thought that the material which they had posted was private. In each case, to each employee's cost, the employee was wrong.

The privacy settings of social media platforms can provide a most uncertain refuge; for example, even if a photograph is visible only to Facebook "friends", this does not prevent the photograph from being distributed more widely. Two Victorian employees discovered this fact last year, when photographs which they had uploaded to Facebook which depicted them "planking" in the workplace came to the attention of WorkSafe via "a member of the public". Each employee was prosecuted for breach of the Occupational Health and Safety Act 2004 (Vic), and each was fined $1500.

Rather than relying upon the privacy settings of each social media platform on which employees are active, it is better to observe what Jay Shepherd calls the Cosmic Law – always assume that the person you would least like to see your social media post (or photograph, or video) will see it. That person may be your boss, or your opponent in a dispute, or your mother (or WorkSafe Victoria).

The Cosmic Law is sometimes expressed as "don't post anything which you wouldn't want to see next to your name on the front page of a newspaper" or "don't post anything which you wouldn't want shouted from the rooftops" – although if you follow the last formulation of the rule too literally, the only permissible Facebook status update is "[your name] is stuck up here on the roof". The policy should emphasise that some things are better left unsaid, and that if something can only be said on the basis that it is "private", then it may be better not to say it at all.

Equally, if something can only be said on the basis that the person saying it is "anonymous", there is a good chance that it should not be said. Much has changed since the 1993 New Yorker cartoon which was famously captioned, "On the Internet, nobody knows you're a dog" – today, although they might not know that you're a dog, they have ways of finding out.

In May 2011, South Tyneside Council in the United Kingdom commenced proceedings against Twitter in the United States to compel production of information in relation to "anonymous" Twitter accounts which were said to be defaming the Council and its councillors. Equally, considerable embarrassment can be suffered when it turns out that rave reviews of new products from anonymous "members of the public" turn out to be the work of employees whose job it is to sell that very product.

Other key issues which the policy should deal with include making employees aware that they should keep the personal and professional separate. This means that, for example, personal social media accounts should normally not be used for business communications, and employees should take care not to imply their employer's endorsement of their personal views. It is also worth paying specific attention to employees' obligations in relation to confidential information, and in particular, it is worth pointing out that even partial disclosure of confidential information should be avoided. It may be that no one particular post, or tweet, discloses any particular confidential information, but that disclosure can occur by a process of "jigsaw identification" when a number of such posts or tweets are put together.

Finally, the policy should expressly remind employees that breach of the policy may have consequences for their employment, up to and including the termination of their employment in appropriate circumstances. This doesn't need to be done in a threatening way, by the waving of a big stick, but employee misuse of social media can have serious consequences for the employer, and, accordingly, it is important for employees to understand that misuse can have serious consequences for the employees as well.

Conclusion

For the last word, we return to the Linfox decision. Having considered all of the employee's conduct, Commissioner Roberts said:

"[The employee] would be wise to take note of a comment he posted on his Facebook page on 11 November 2010. That comment read: "Law of Probability - The probability of being watched is directly proportional to the stupidity of your act." Here is wisdom."

Commissioner Roberts might also have added that the probability of an employee doing something stupid (or at least, of an employee doing something stupid and posting the evidence in social media channels) is inversely proportional to the employee's understanding of the consequences of that action. An effective social media policy is the best tool for the promotion of understanding, and although no mere policy can ever promise to inculcate wisdom into all employees, understanding is a very good place from which to start.

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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