Social media is here to stay: what should HR be considering instead of locking out employees and chaining up the computer?

In recent years the use of social media, including social networking sites such as MySpace, Facebook and LinkedIn, has grown exponentially. Facebook had approximately 5.5 million active members in December 2005, over 350 million active members just four years later, and is expected to hit 600 million members by the end of this year. 
 

The use of these new technologies in the workplace presents both opportunities and threats for employers and employees alike. Opportunities for both parties include improved efficiency in engaging with employees and spreading marketing messages at very low cost. However, employers fear that the use of social media in the workplace could carry very serious business risks, for example, the inadvertent sharing of confidential or proprietary business information. Employers, therefore, worry that the improper use of social networking sites could result in damage to their brand. 

Employers may also be concerned that they could be vicariously liable for their employees’ social networking activities.  Employers could find themselves facing complaints of harassment, discrimination and victimisation where employees have posted offensive language on social networking sites that can be viewed by colleagues. This is most likely to arise where the employer hosts an internal social networking forum. However, in the U.S. an employer has been held liable for harassment when a colleague posted negative remarks on an external internet bulletin board which was a staff favourite. The court held that an employer has a duty to stop harassment not only in the workplace, but also in “settings related to the workplace” and that cyberspace can be part of the workplace. Accordingly, employers could be required to investigate employees’ social networking activities, although this cause employees to fear the infringement of their right to respect for their private life.

In addition to these business-based risks, employers may feel that employees are wasting what should be working time on visiting social networking sites. Employees, on the other hand, may see social networking sites as an opportunity for groups of employees to discuss work-related issues away from management. This could be a good or a bad thing for employers, depending on the state of employee relations.

Employers’ and employees’ fears regarding the use of social networking sites in the workplace are not unfounded as what could be a win-win situation for employers and employees can often turn out to be anything but. However, employers in particular must be careful when trying to mitigate these threats, to avoid incurring additional liabilities. For example, the monitoring of social networking sites may be useful, but must be undertaken in accordance with all applicable legislation, including the Data Protection Act 1998. Likewise, employees must be aware of the knock-on effects for their employers of their use of social networking sites.

There are a number of common interactions with social networking sites which present pitfalls for the unwary, and which may expose employers to legal risk. For example, many employers use social media in employee recruitment. There are no laws which say they cannot do this; however, they should be aware that doing so could expose them to additional risks and challenges to their recruitment process. As a general rule of data protection, employers should only collect information which is relevant and not excessive for the purpose in hand. Although employers may be interested to find out more about applicants than applicants include in their application forms or CVs, and therefore wish them to know, additional information gathered from social networking media may not be relevant to, or may be excessive in relation to, the hiring decision. In addition, if it reveals that the applicant is covered by the discrimination legislation and the applicant is unsuccessful, it could expose the employer to allegations that it has discriminated. 

Employers may also monitor social networking sites during the employment relationship, for example, when an employee is off sick but there is reason to suspect that the sickness is not genuine. When undertaking such monitoring, employers must comply with data protection legislation and also respect employees’ right to private life. This will entail carrying out an impact assessment of why such monitoring is to be undertaken and the benefits to be gained from such monitoring, balanced against the likely adverse impact of the monitoring on the employee. As part of the assessment alternatives to the proposed monitoring should be considered, and the employer must take intro account the obligations that arise from the monitoring. Having assessed all of these matters, the employer should then be able to decide whether the monitoring is justified in this particular case.

So what should employers be doing to mitigate the risks associated with social networking sites in the workplace?  A total ban on social networking at work is both unrealistic and impractical. However, there are some easy practical steps which employers can take, such as having a social media policy (and dealing with the use of social media in other relevant policies, for example, IT use policies, disciplinary policies, harassment policies and whistleblowing policies).

Employers should also train employees on their social media policy. Although employers cannot control employees’ use of social networking sites outside the workplace, they can provide guidance where such use could be associated with employees’ employment.

For example, if employees choose to identify themselves as employees in their personal social networking activities, they should be encouraged to make clear that any views expressed are their own and not those of their employer. Moreover, no links should be provided to employers’ websites. Finally, before embarking on any monitoring exercise, it is advisable to take legal advice to ensure compliance with all applicable laws and regulations.

Ann Bevitt is a Partner at Morrison & Foerster