SOCIAL NETWORKING: EMPLOYER S FRIEND OR FOE?

SOCIAL NETWORKING: EMPLOYER’S

FRIEND OR FOE?

MERCER 2012: ASIA PACIFIC HR ROUND TABLE

24 OCTOBER 2012

Lucy Twomey, Senior Associate, Herbert Smith Freehills LLP

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What do we mean by social media?

• Web 2.0 applications that facilitate interactive information sharing, interoperability, user-centered design and collaboration.

• Examples:

•

Facebook

•

MySpace

•

Twitter

•

Youtube

•

LinkedIn

•

Wikipedia

•

Second life

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What makes social media appealing?

• Immediacy

• Multimedia

• Cut and paste

• Large user base

• Direct communication

• Ability to be anonymous or assume another identity

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Why is personal use of social media a work issue?

• Use of work email address

• Work colleagues as “friends”

• Can identify the employer

• Accessed using work equipment

• Visible at work

• Viewed during work hours

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Social media in the employment life cycle

• Pre-employment use of social media

•

background checks and recruitment

• Risks and benefits during employment

•

illegal use and conflicts of interest

•

positive tool for mass communication and professional networking

• Post employment risks

•

loss of confidential information (eg client contacts, etc)

+ Positives

– increased brand awareness, professional network building, training and well-being programmes, customised social networks for employees only, etc

- Negatives

loss in productivity, illegal conduct such as discrimination, harassment, bullying, breach of

privacy or data protection laws, defamation, illegal contracts, etc

+ Positives

– background checking, recruitment, knowledge sharing, mass communication to staff and clients, cross border meetings,etc

- Negatives

– copyright, intellectual property misuse/ownership, breach of confidentiality, pornography, obscene publications, online gambling, adverse evidence, misrepresentation, fraud, conflict of interest etc

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Cyber bullying/harassment

• Employee, Mr O’Keefe was frustrated that he wasn’t paid the right commission, after raising the matter with a female manager in his pay office.

• Facebook post: “f...ing work still haven’t managed to f...ing pay me correctly. C...s are going down tomorrow.”

• Finding: Prima facie, threatening another work employee is a serious issue

and one which would not be tolerated in any workplace. The manner in which the threat was made and the words used provided sufficient reason for the respondent’s dismissal of the applicant on the grounds of serious misconduct.

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“Google me”

• Implications of online background checks:

•

Social media terms of use

•

Privacy

•

Discrimination risks

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Deciding your strategy

• What is your workforce profile?

• What is the current business use of social media?

• What are the known employment issues to date?

• Who will be involved in the decision?

• Does the management understand social media sufficiently to grasp the risks and benefits?

What will be your approach?

Ban Tolerate Embrace

No SNS at work No SNS at work Permissible but guidelines around use Permissible but guidelines around use

Encourage use for work and personal reasons

Encourage use for work and personal reasons

Policies to review

• Recruitment

• Equal opportunity and bullying

• IT and email

• Intellectual property and confidential information

• Conflict of interest

• Code of conduct/ethics

• Disciplinary and grievance policies

• Media and public comment

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Social media policy

• Policy statement/ purpose

• Application and status of policy

• Conduct covered (including definitions)

• Permitted use: work and personal

• Prohibited use

• Guidelines

• Passwords and security

• Monitoring

• Reporting policy breach

Education

• Managers and leaders

• Staff

• Policy and appropriate use of social media

• Updating other training:

•

Induction

•

Equal opportunity and bullying

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Monitoring

• Check that you have the necessary consents or notified employees of possible monitoring as required by applicable laws

• Monitor use of work equipment for breaches of policy to the extent permitted by law

• Check publically available information on social media sites

• “Shoulder surfing”? Can you or should you do it?

• Investigate concerns relevant to the workplace but be aware of applicable privacy restrictions if involving out of work conduct

Enforcement?

Work conduct:

• Productivity

• Cyber bullying

• Equal opportunity claims

• Copyright breach

• Confidential information

• Defamation

• Misleading conduct

Off duty conduct:

• Evidence of unauthorised leave

• Personal activities inconsistent with the employment

• Adverse comments on blogs, Twitter, Facebook

What types of conduct might justify disciplinary action and possible termination of employment ?

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Conclusion: key steps for managing social media

1. Policies

•

Social media policy

•

Update other policies

2. Education

•

Managers

•

Workforce

•

Update other training programmes

3. Monitoring

•

Check that your monitoring and investigation practices are lawful

4. Enforcement

Questions