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 Christopher Cheung, Legal Associate (New Zealand), Herbert Smith Freehills LLP
Social media in action 2
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 3
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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 But these are also the things that give rise to legal risks 5
Social media: personal and work use
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 Inclusion of work-related information 7
Social media: risks and benefits
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) derogatory statements 9
Data Protection and Social Media - 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 + Positives increased brand awareness, professional network building, training and well-being programmes, customised social networks for employees only, etc - Negatives copyright, intellectual property misuse/ownership, breach of confidentiality, pornography, obscene publications, online gambling, adverse evidence, misrepresentation, fraud, conflict of interest etc 10
Personal use
Productivity impact 12
Photos, status updates 13
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. O Keeffe v Good Guys 14
Discrimination, sexual harassment 15
Evidence of misconduct 16
Comments about work or co-workers 17
Conduct inconsistent with employment 18
Work related use of social media
Google me Implications of online background checks: Social media terms of use Privacy Discrimination risks Unfair dismissal claims 20
Social media authorised by the employer 21
Unauthorised work use 22
LinkedIn: is it personal or professional? 23
Decide your strategy
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 is your timeframe to review the strategy? 25
What will be your approach? Ban Tolerate Embrace No SNS at work Permissible but guidelines around use Encourage use for work and personal reasons 26
Implementing your strategy: Policies
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 Others? 28
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 Consequences for breach of policy 29
Education Managers and leaders Staff Policy and appropriate use of social media Updating other training: Induction Equal opportunity and bullying Others? 30
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 31
Enforcement? What types of conduct might justify disciplinary action and possible termination of employment? Work conduct: Productivity Cyber bullying Equal opportunity claims Copyright breach Confidential information Off duty conduct: Evidence of unauthorised leave Personal activities inconsistent with the employment Adverse comments on blogs, Twitter, Facebook Defamation Misleading conduct Brand damage 32
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 Apply penalties consistently, fairly and in accordance with local laws 33
Questions Note: This presentation contains guidance information only and not legal advice. Herbert Smith LLP is not licensed to practice local law in all of the jurisdictions referred to but can work with local counsel to arrange the necessary advice for clients with specific issues. 34