Social Media: Employment issues in a Web 2.0 world
Many employers are grappling with the challenges of managing social media in the workplace. In a recent webinar entitled Facing up to Facebook: Managing workplace issues in a Web 2.0 world, Kate Jenkins from leading law firm Freehills discussed some of the key employment issues in a Web 2.0 world. Below is an extract from an article by Kate Jenkins and Amanda Cochrane entitled By demand: your top five social media questions answered which addresses the most common concerns of employers who participated in the webinar:
Can employers use information obtained via Web 2.0 searches to decide whether to employ or not employ a candidate?
Yes - every employer is able to rely on information that is available in the public domain. In fact, Web 2.0 applications are becoming an increasingly important element of the pre-employment due diligence process, but employers should be aware of the following legal risks:
- Discrimination - if an employer decides not to employ someone on the basis of irrelevant personal information or a particular attribute which they learn about through social media, then they are at risk of a discrimination claim. There is also a risk of an adverse action claim where an employer declines to employ someone based on information about a complaint brought against a former employer, prior trade union activity or other ‘workplace right’ attracting protection under the Fair Work Act 2009 (Cth).
- Privacy - under privacy laws, job candidates can access information used for assessing their application and retained on file, including print outs of Web 2.0 searches. Unsuccessful candidates may use this information to form the basis of a discrimination or adverse action claim.
- Breach of contract - the Facebook terms and conditions prohibit use for commercial gain and collection of user information without first obtaining the individual’s consent. While there are currently no examples of Facebook instituting proceedings for breach of these terms in an employment context, this is a potential area of risk which is likely to develop in the future.
Can employers monitor employee usage of Facebook?
Yes - employers can set rules about what employees do during work hours and whilst using company provided equipment. Ideally, these rules would be contained as an express term or in a workplace policy which forms part of the employee’s employment contract, but traditional common law duties of good faith and fidelity also apply. Employers in New South Wales should be aware that monitoring of employee emails are subject to specific restrictions under workplace surveillance laws.
Is it possible to terminate an employee for inappropriate use of Web 2.0 during work hours?
Yes - the usual principles for terminating employment on the basis of inappropriate conduct and behaviour while at work apply in a Web 2.0 context. Conduct that may form the basis for termination includes sexual harassment, bullying, misconduct, breach of copyright, defamation, disclosure of confidential information, misleading conduct and conflict of interest. The key question in Web 2.0 cases is often whether the conduct occurred while the employee was ‘on’ duty and, if not, whether there is a sufficient connection with the employment relationship. The risk of termination claims is best managed by ensuring there is a clear policy about appropriate use of Web 2.0 applications which has been explained to employees.
This extract was reproduced with the permission of Freehills.
Jenkins, K & Cochrane, A 2010, By demand: your top five social media questions answered, Retrieved 4 January 2011.
