Three important things learned from social media cases to date
WHAT YOU NEED TO KNOW:
Employers are susceptible to bullying claims arising from employee (or contractor) conduct online, regardless of where and when the online activity took place – make sure your bullying, social media and Internet workplace policies are up to date in order to manage any legal risks.
As an employer, you may not have the right to address any disciplinary action for an employee’s out-of-hours conduct, so you need to be very clear about your position.
As the ownership of LinkedIn accounts is still unresolved at law, you may want to implement specific clauses into relevant employees’ contracts, position descriptions and workplace policies.
Here are three important issues that cases have taught us about social media in the workplace.
- Employees do not need to be in the workplace to be “at work”
A Fair Work Commission Full Bench late in 2014 said that employees can make bullying claims regardless of whether the alleged bullies were “at work” at the time of the relevant conduct. This decision means that employers are susceptible to bullying claims in respect of the conduct of any employee (or contractor) who bullies another worker whilst engaged in an activity which is authorised or permitted by the employer – regardless of whether or not they were at work (so, it picks up situations such as employees accessing social media while performing work, meal breaks, work-related social functions etc – regardless of location).
ACTION: Employers should review their workplace policies as to bullying, social media and Internet use so as to reflect the Full Bench’s decision in this regard and, as best as possible, mitigate the relevant risks.
- An employer has no right to control or regulate an employee’s out-of-hours conduct
Contrast the point above with the separate and distinct issue of whether an employer can take disciplinary action in relation to out-of-hours conduct (in respect of activities not authorised or permitted by the employer), including out-of-hours conduct involving the use of social media. By reference to the cases, an employee’s employment can only be validly terminated because of out-of-hours conduct which is “of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee. Absent such considerations an employer has no right to control or regulate an employee’s out-of-hours conduct.” This sets a very high bar for employers seeking to discipline an employee for inappropriate out-of-hours use of social media.
ACTION: Employers should be careful to ensure that they are entitled to regulate the conduct complained of before taking any disciplinary action (i.e. if the conduct occurred as a result of out- of-hours online behaviour, unless is it significantly serious in its affect upon the employment, it may not be properly open to the employer to address it).
3. The issue of who owns LinkedIn connections is unresolved in law
Many employees now use LinkedIn in connection with their work. Often, over time (or not, in some instances), an employee’s LinkedIn account can become what is essentially a perfectly portable directory of the employer’s clients or customers and suppliers. So what happens when the employee leaves that employer and moves on?
LinkedIn grants ownership of a LinkedIn account to the individual in whose name it is held – so, to the employee. In Australia, the law is unresolved as to whether LinkedIn connections constitute confidential information or trade secrets. Some consideration has been given to the issues in other countries, with varied results. In the United States it has been determined that LinkedIn connections are not protectable trade secrets, on the basis that the information is “either generally known in the wider business community or capable of being easily derived from public information”. In the United Kingdom it has been determined that LinkedIn connections can constitute confidential information, particularly where an employer encourages the use of LinkedIn in the performance of an employee’s duties and/or where the connections are procured with the specific intent that they will be used for the benefit of a new employer.
The Fair Work Commission turned its mind to the issue in 2013, in a limited context, when determining an unfair dismissal claim made by a senior employee whose employment was terminated for attempting to solicit his employer’s clients through LinkedIn so as to grow his own private business. Essentially the Commission sided with the employer, finding that the employee “owed an obligation to his employer to faithfully promote his employer’s interests” and that sending a LinkedIn message to connections seeking to solicit their business for himself was conduct contrary to that obligation. Whilst perhaps indicative of what the judicial position in Australia may be in respect of such matters going forward, the case was determined in a confined context by reference to its individual facts and circumstances and has therefore not resolved the issue at law, leaving it largely “up in the air”.
ACTION: To seek to mitigate the risk of the unknown in this regard, employers should consider putting in place for relevant employees the following:
- incorporate LinkedIn contacts obtained during the course of the employment as “confidential information”;
- contain suitable post-employment restraints, perhaps including a restriction on the use of certain LinkedIn contacts after the employment has ended;
Position descriptions which:
note acquiring social media connections as being one of the duties of the role; and
Workplace policies which:
- specify the expectations of the employer as to relevant social media connections;
- require employee compliance as a condition of employment; and
- require employees to have their settings set such that the connections are not viewable at large.
Other measures which some employers are putting into place which may assist in protecting LinkedIn contacts post- employment include:
- procedures whereby the employer’s own database is updated to include employees’ new LinkedIn connections and to note changes to the details of existing connections; and
- paying for relevant employees to operate a ‘premium account’ (thereby creating perhaps a more-compelling-than- otherwise argument that the employer has some ownership of the account).
There is no question that social media is here to stay. As a relatively new and emerging area, the laws and considerations as to the role social media plays in the workplace will continue to evolve and change with time. It will be important for employers to remain apprised of legal developments in the area as they occur and to attend to relevant actions that may arise in order to manage associated legal risk.
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