rosenblatt
solicitors
Social Media in the Workplace
Brian Palmer, Employment Partner brianp@rosenblatt-law.co.uk
DDI: +44 (0)20 7955 1510 Mobile: +44 (0)7973 753 613
9-13 St. Andrew Street London EC4A 3AF DX: 493 Chancery Lane
Andrea London
Partner, Head of Employment Department
In this seminar…
We will be looking at:
The implications of Social Media for the employment relationship
The misuse of Social Media
How to draft an effective Social Media policy
Post termination restraints in the context of Social Media (particularly LinkedIn)
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What is Social Media?
Social media is the social interaction among people in which they create, share or exchange information and ideas in virtual communities and networks via a (mind-boggling) variety of web-based and mobile technologies that enable communication to be turned into active dialogue.
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Types of Social Media?
There are many, many different types of social media channel, which attract specific audiences for different purposes.
There are (at present) seven generally- recognised categorisations:
Collaborative projects (for example, Wikipedia)
Blogs and microblogs (for example, Twitter)
Social news networking sites (for example, Digg and Leakernet)
Content communities (for example, YouTube)
Social networking sites (for example, Facebook) Virtual game-worlds (for example, Warcraft) Virtual social worlds (for example, Second Life) 4 4
Social Media uses? It would be easier to say what it isn’t used for…….
Business? - Some social networking sites are widely used and recognised by professionals
– generally having been designed for this purpose. LinkedIn is a (more) business orientated social networking site which is primarily used for professional networking. It allows users to create professional profiles, build and maintain professional contacts and is a marketing tool for businesses. It is a global network with over 120 million members. Twitter is an online social networking and microblogging service that enables users to send and read small amounts of information of a maximum 140 characters (‘Tweets’).
Personal? Other well known social networking channels such as Facebook, YouTube and
Flickr may only have limited business use as they are more widely recognised as channels for personal use. However, this does not mean that these should be discounted as viable social media channels to be used professionally, nor does it mean they do not have the potential to cause significant problems for employers.
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Criticisms of Social Media
a. Ownership of Information
b. Privacy
c. Damage to interpersonal relationships & Addiction
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Some “Social Media Statistics”…
Facebook had over 1 billion active users at the end of 2012.
As of 2012, effectively using Facebook and Twitter in small businesses can increase profits by up to 43%
Twitter processes more than one billion tweets a year and averages almost 40 million tweets per day
On average, just over a quarter (26%) of UK employees use social media for work, compared with three quarters (76%) who use it for personal purposes
Over half (54%) of employers use social media for recruitment. Both employers (38%) and job seekers (16%) use social media to check on each other and inform their choices.
29% of employers have disciplined or dismissed an employee for misuse of social media in
the last year
Social media has overtaken pornography as the No. 1 activity on the web
YouTube is the second largest search engine in the world.
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Relevance to Employment
Two main issues are particularly relevant to employment in regard to Social Media:
Even when using social media channels for personal use, consider whether you will be
associated with activities which may be visible online and could be viewed by your employer, work colleagues, other professionals or clients. Always think very carefully about what you are posting online – it is permanent.
As Social networking sites can be used both personally and professionally, it is often not clear where personal and professional boundaries lie - have regard to the potential issues where you have information obtained in a business situation but stored on a “personal” social media platform …for example, client contact details in Facebook or on LinkedIn
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A final note on Social Media…. employ caution !
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Philip Minnis
Solicitor, Employment Department
RECRUITMENT (PRE-EMPLOYMENT) Advantages of Social Media
Targeted recruitment Candidate vetting Risks of Social Media Discrimination
Data protection
DURING EMPLOYMENT
Advantages of Social Media Business development Increased visibility
Promoting work relations Source of information
DURING EMPLOYMENT Risks of Social Media Discrimination Data Protection Confidentiality Productivity Reputation Conduct Privacy 13
BASIC TIPS ON MANAGING SOCIAL MEDIA
Decide on the right balance for your organisation Implement social medial policy
Implement disciplinary and grievance procedures Update employment contracts
Brian Palmer
Partner, Employment Department
Reputation
Weeks v Everything Everywhere (2012) Witham v Club 24 (2010)
Stephens v Halfords plc (2010) Bullying & Harassment
Young v Argos
Teggart v TeleTECH UK Ltd (2012)
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Privacy & “Friends”
Gosden v Lifeline Project (2013)
Preece v JD Wetherspoons plc (2011)
Pay v Lancashire Probation Service (2004)
X v Y (2004)
Freedom of Expression
Smith v Stafford House Trust (2012)
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Richard Freedman
Solicitor, Employment Department
A well drafted social media policy should set out what is expected from employees and their use of social media.
It should set out the detrimental effects misuse of social media can have on the employer and also the potential ramifications should an employee breach the policy.
Misuse or disclosure of confidential information Damaging/defamatory comments (even indirectly) Employees’ personal use of social media at work Harassment and bullying via social media
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Disclosure of confidential information on social media can:
Damage the employer’s business;
Place them in breach of contract (e.g. NDA);
Compromise the employer’s ability to preserve its intellectual property rights;
Jeopardise legal privilege between the employer and its legal advisers.
Accordingly a social media policy should contain a restriction on posting comments about sensitive business topics, trade secrets, confidential information and intellectual property.
Damaging, disparaging or defamatory comments can:
Adversely effect business connections;
Harm the employer’s reputation (including indirectly);
Result in the employer being on the receiving end of litigation.
Accordingly a social media policy should:
Tell staff not to make comments that could be seen as damaging or defamatory (to either the employing organisation or a third party);
Address whether employees can make comments on behalf of the
employer. Alternatively should it state that, if their profile refers to the employer, any views are their own and not those of their employer.
Consider how the employer wishes to govern employees’ use of social media at work. Both using the Company’s IT
resources and via personal equipment. Is a blanket ban appropriate and realistic?
Would it be better to permit occasional personal use
provided it does not involve inappropriate or unprofessional content and does not interfere with the employees’
responsibilities and productivity.
Important to remind staff that, despite not necessarily being conducted within the work place, bullying and harassment of colleagues can take place via social media.
Social media policy should remind employees not to bully, harass or discriminate via social media.
Cross-refer to employer’s bullying and harassment policy.
Disciplinary action up to and including dismissal (cross-refer to the employer’s disciplinary policy).
Requirement to remove any social media content that the employer deems to be in breach of the policy.
Requirement to provide any passwords and usernames to the employer to enable them to edit and delete any content in breach of the policy.
Policy status – non-contractual so that it can be unilaterally amended and updated.
A restriction on employees ‘adding’ business connections? – Be careful!
Guidelines on responsible social media use.
Monitoring – reserve the right to monitor staff use of social media (in line with any other communications policy that may be in place).
Rima Mehay
Associate, Employment Department
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Reminder: What are PTRs?
Confidential Information
Customers - former employee shall not solicit, approach, entice away or deal with certain customers
Employees - former employee shall not entice, encourage or solicit certain employees to leave the former employer’s business
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How does it work?
User Agreement – “you own the content and information you
provide LinkedIn… and may request its deletion at anytime, unless you shared information or content with others and they have not deleted it, or it was copied or stored by other users”
Very little litigation
What is solicitation?
“to ask for or try to obtain something from someone”
positive intention
direct and targeted behaviour
Announcement?
Updating profile to show change of employer?
Pre action disclosure application
Former employee deliberately loaded LinkedIn contacts from employer’s confidential work database whilst an employee Outcome: pre-action disclosure ordered in relation to emails
sent or received from LinkedIn account from the company’s computer system
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Interim injunction
Team move to set up competitive business LinkedIn Groups
Court ordered the defendants to facilitate the access,
management and control of the LinkedIn Groups and not impede Whitmar’s access
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Freedom of contract
Restraint of trade issues?
Deletion of contacts and won’t restore for a period of time? What about personal contacts or contacts that have been
acquired during employment but are not clients? Requirement to hand over password / contacts to a
colleague?
Human Rights issue? Freedom of association and expression
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Company address Company photo Create text
Create password
Give KPI to build up account
Tell employee the LinkedIn account belongs to the company
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