Social Media in the Workplace
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1 Social Media in the Workplace rosenblattsolicitors Brian Palmer, Employment Partner DDI: +44 (0) Mobile: +44 (0) St. Andrew Street London EC4A 3AF DX: 493 Chancery Lane
2 Andrea London Partner, Head of Employment Department 1
3 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) 2
4 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 webbased and mobile technologies that enable communication to be turned into active dialogue. 3
5 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
6 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. 5
7 Criticisms of Social Media a. Ownership of Information b. Privacy c. Damage to interpersonal relationships & Addiction 6
8 Some Social Media Statistics Facebook had over 1 billion active users at the end of 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. 7
9 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 8
10 A final note on Social Media. employ caution! 9
11 Philip Minnis Solicitor, Employment Department 10
12 RECRUITMENT (PRE-EMPLOYMENT) Advantages of Social Media Targeted recruitment Candidate vetting Risks of Social Media Discrimination Data protection 11
13 DURING EMPLOYMENT Advantages of Social Media Business development Increased visibility Promoting work relations Source of information 12
14 DURING EMPLOYMENT Risks of Social Media Discrimination Data Protection Confidentiality Productivity Reputation Conduct Privacy 13
15 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 14
16 Brian Palmer Partner, Employment Department 15
17 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) 16
18 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) 17
19 18
20 Richard Freedman Solicitor, Employment Department 19
21 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 20
22 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. 21
23 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. 22
24 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. 23
25 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. 24
26 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. 25
27 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). 26
28 Rima Mehay Associate, Employment Department 27
29 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 28
30 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 29
31 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? 30
32 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 s sent or received from LinkedIn account from the company s computer system 31
33 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 32
34 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 33
35 Company address Company photo Create text Create password Give KPI to build up account Tell employee the LinkedIn account belongs to the company 34
36 35
37 Social Media in the Workplace rosenblattsolicitors
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