Many employers now see the benefits of their staff using social media but that doesn’t mean businesses should turn a blind eye to the legal risks, says lawyer Kate Hodgkiss.
Facebook, Twitter, LinkedIn and other social networks link millions of people across the world every day. The sites have become an integral part of the way we live and work. But in the workplace, at least, their impact is not always positive and can expose employers to serious legal liabilities.
In October, global law firm DLA Piper published research into social media in the workplace. The message was clear. Employers are capitalising on the social media phenomenon but their policies and procedures are failing to keep up. Here are the five main reasons why employers should sit up and take notice.
1. What staff post on social media sites may damage the employer’s reputation and brand
DLA Piper’s report shows that 65 per cent of employers actually encourage their employees to use social media for work-related activities.
However, with this activity comes some potentially serious ramifications, particularly as the line between work and private life is often a hard one to draw.
Employees may intentionally or unintentionally cause damage to the employer’s reputation and brand by posting unfavourable comments about the organisation or information which potentially defames third parties.
Staff may also post controversial opinions, or display information about their private life which, from the employer’s perspective, is inappropriate to their role.
2. Comments posted on social media sites by employees may harass or discriminate against colleagues
According to the research, 59 per cent of employees use Facebook for personal use, and 50 per cent use Twitter. However, employees using these sites for personal use also admit to posting information directly relating to their employer or colleagues.
Some 22 per cent of employees surveyed have posted a status update, or tweeted, about a colleague and 28 per cent have posted photos of colleagues or business activities. This activity clearly presents a risk to employers who can be vicariously liable for…
…the harassing or discriminatory actions of their employees.
It is therefore perhaps unsurprising that 31 per cent of employers have taken disciplinary proceedings because of information an employee has displayed on a social media site about the organisation, and 21 per cent have taken disciplinary proceedings because of information an employee has displayed on a social media site about another individual.
3. Employees may intentionally, or unintentionally, leak confidential information on social media sites
The risk of disclosure of confidential information by employees is not a new risk but it is one that is magnified by the rise of social media sites. The informal nature of social networks can lead to employees dropping their guard and posting information that they would ordinarily have kept secret.
Some 34 per cent of employers in DLA Piper’s study believe they are exposed to this risk. This type of disclosure has the potential to damage a business substantially, including diminishing competitive advantage, reducing the ability to preserve intellectual property rights and placing an employer in breach of a confidentiality agreement with a third party.
4. Monitoring may cross legal boundaries
Monitoring employees’ social media usage may take place at any stage in the employment relationship. While, on the one hand, monitoring is essential to control the legal risks arising from social media, it can create its own legal liabilities if it is done in the wrong way or for the wrong reasons.
Key to reducing these potential liabilities is ensuring that employees are aware of the methods, and extent, of monitoring.
5. Comprehensive and bespoke social policy
A comprehensive and bespoke social policy backed up by training and enforcement will allow employers to effectively regulate social media usage by employees.
The research shows that just 25 per cent of employers have a stand-alone social media policy, suggesting that regulating social media is not yet high on the business agenda. However, a detailed, tailored social media policy is an essential tool for the effective management of social media.
Putting such a policy in place, and training staff on its terms, can prevent many of the risks. It can also facilitate effective disciplinary action where social media misuse occurs.
Kate Hodgkiss is a partner in DLA Piper’s Employment, Pensions & Benefits practice. She advises on all aspects of employment law, encompassing practical advice and support on day-to-day issues, together with advice on major reorganisations and strategic change.