Social Media In The Workplace - Top Ten Legal Considerations

Social media has revolutionised our daily business and interaction with each other. It is reported that almost one third of the world’s population has an active social media account. Facebook alone surpassed 1.55 billion monthly active users in the latter half of 2015. It is hardly surprising therefore that social media has permeated almost every aspect of our lives, whether it is on a personal or professional level.

Social media sites such as Facebook, Twitter and LinkedIn can be a powerful tool for businesses in building their company’s profile. Many businesses have become adept at harnessing the power of social media to their advantage. However, social media has thrown up some huge challenges for employers. These challenges were brought into sharp focus once again last week with the European Court of Human Rights (the “ECHR”) ruling that a Romanian employer did not breach the privacy rights of an employee when it monitored chats on his Yahoo Messenger account.

The employee in question had been directed by his employer to set up the Yahoo account for the specific purpose of engaging with professional clients. Personal use was however expressly prohibited by his employer. He was dismissed in 2007 after his employer uncovered extensive personal use of his social media account. The ECHR found that it was “not unreasonable for an employer to want to verify that employees are completing their professional tasks during working hours”.

In light of the above, it is useful therefore to consider the issues that arise for employers regarding the use of social media in the workplace.

We have set out our top ten legal issues for your consideration below:

1. Ownership of contacts – employers may be keen to recruit an individual due to their vast network of business contacts. However, the ownership of such contacts can be a major legal issue. In particular, the individual may have restrictive covenants in their existing contract of employment preventing them from using that network of contacts in their new employment. Employers also need to put safeguards in place to prevent employees using business contacts obtained through their employment, particularly on LinkedIn, when their employment terminates.

2. Protecting your brand and reputation – social media platforms are undoubtedly a significant marketing tool which are utilised by organisations to promote their brand. However, clear parameters need to be established, by way of a social media policy, as to what is considered appropriate use of social media in the workplace. Where possible social media sites which are intended for professional use should be set up in the organisation’s style and logo. Companies are also encouraged to register their name on social media sites, either to reserve their ability to use those profile names in the future or to keep others from doing so.

3. Personal v Professional – since its inception, Facebook has generally been recognised as the “personal” social media platform whereas LinkedIn has a professional following. However, from an employment perspective, issues arise where personal and professional boundaries become blurred. As a general rule, professional contacts and activity should remain entirely separate from an employee’s personal life. These boundaries are set to become even more distorted with the imminent introduction of “Facebook at Work” which is seeking to cater for increased use of Facebook by businesses. As a result, organisations need to give careful consideration as to what image it wants to portray on social media. Training should be provided to employees as to what is acceptable. Furthermore, where an employee is expressing a personal opinion, they should make this clear and indicate that this is not the view of their employer.

4. Recruitment – many employers use social media platforms such as LinkedIn, Facebook, Twitter, Viadeo, XING, Google+ and BranchOut to recruit employees. Employers need to ensure the language used in online adverts together with any screening questions, do not discriminate against the applicant.

5. Online screening - “you are who Google says you are” Online screening has become commonplace in Ireland, however, is it lawful to vet social media profiles of job applicants? There is no legislation preventing a prospective employer from doing so however, it does raise data protection issues. In particular, as to how the employer came into possession of the information. Furthermore, employers need to exercise caution in their use of information which could be deemed to discriminate against potential candidates, for example, photographs or postings which reveal that an applicant has young children or is gay.

6. Data protection – apart from online screening, data protection issues also arise in respect of processing and storing online information. Furthermore, if an employer has a social media page or profile, it has responsibilities as a data controller to ensure that employees’ consent is obtained to use personal data, including photographs.

7. Productivity – on average, individuals are said to have five social media accounts and spend around 100 minutes browsing social media networks every day (GMI report – May 2015). An employer therefore needs to have a clear policy in place as to personal use of social media in the workplace.

8. Privacy – employers have a legitimate interest to protect their reputation resources and equipment and therefore frequently reserve the right to monitor employee activity in the workplace. Outside of work employers may be able to introduce limited control measures, if there is a concern that the business may be adversely impacted. However, employees have a right to privacy and such monitoring activity must be transparent, reasonable and proportionate.

9. Vicarious liability – employers may be held vicariously liable for acts of bullying, harassment and discrimination of employees carried out by colleagues on social media sites. Cyberbullying is an emerging issue for employers and should be included in risk assessments carried out by employers under health and safety legislation.

10. Social Media policy – given the fast pace at which social media is evolving, employers should not expect traditional employee handbooks and policies to deal with social media issues. Creating a comprehensive policy is the most effective way to defray the risks associated with the use of social media. The social media policy should be compatible and cross referenced with other employer policies, particularly with regard to disciplinary issues.

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