Social media giant Facebook has more than one billion users worldwide. As social media continues to increase in popularity, employers have a greater need to monitor use of workplace technology than ever before.
No one wants to discover employees' disparaging comments online. Nor find evidence of staff intimidation in emails.
Employers monitor workplace technology to protect confidential information, keep business reputation intact and improve workplace productivity. Monitoring workplace technology can deter employees from falling foul of their employment agreements on line.
Employers can refer to evidence of misconduct discovered on social media, in staff disciplinary investigations. There have many cases in New Zealand where staff use of social media has come into the firing line. A government ministry was found to have justifiably dismissed an employee who had described herself as "very expensive paperweight", "highly competent in the art of time wastage, blame shifting and stationary [sic] theft" on Facebook.
Sick leave can be called into question, when Facebook shows evidence of a 'sickie.' An employee was found justifiably dismissed after his Facebook photograph at a sporting championship while supposedly on sick leave sparked a disciplinary investigation.
Where there is suspected online bullying and harassment, employers may need to investigate use of social media in order to comply with their health and safety obligations.
Just how far can employers go in investigating staff use of social media and workplace technology?
Employers can investigate social media and workplace technology within the bounds of employment and privacy laws.
Employers must deal with their staff in good faith, which means they need to be active and constructive in maintaining a productive and communicative employment relationship.
This means employers should tell staff that they monitor workplace technology, and provide staff with guidelines and policies, so there are no surprises.
Provided policies are in place, employers are generally entitled to examine employee's workplace emails on their system.
This may be limited where employees have a reasonable expectation of privacy – such as where they are allowed reasonable personal use of workplace emails, and a username and password for their security.
Privacy obligations prevent an employer from overly zealous snooping of workplace technology. A recent complaint to the Privacy Commissioner highlights the importance of employers complying with privacy law obligations, when investigating staff emails.
According to the Privacy Commissioner's Case Note, an employer investigated an employee for misconduct, and accessed information from the workplace computer as part of its investigation. The Privacy Commissioner considered that the employer could monitor staff use of the workplace computers because the employment agreement and employee manual clearly allowed for this.
However, the employer went too far when it used information collected from keystroke logging to access the employee's personal web-based email account and copy several emails.
The Privacy Commissioner considered that information obtained by keystroke logging went beyond what was relevant to the employment investigation. Personal email accounts attract a high expectation of privacy, and the collection of this information was unreasonably intrusive. The policies were also not explicit enough: the employee was not aware that his employer could collect information on his personal emails.
This case emphasises the importance of stating in both employment agreements and policies that workplace computers and information technology will be subject to monitoring.
- For best practice in monitoring social media and workplace technology, employers should:
- Require the employees' acknowledgement of monitoring of workplace technology in staff employment agreements.
Provide staff with social media and information technology policies. Set out clear guidelines about what is acceptable and non-acceptable use of social media, the extent of monitoring, and the potential consequences of breaching the social media policy. Regularly review these policies, to keep up with changes in technology.
- Only access employee's social media sites that are publicly available, or where managers have been invited to share the site.
- Not read any obviously confidential emails, such as those to and from a law firm, or any union-related communications.
- Not befriend staff on Facebook for the purpose of snooping on them.
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.