The courts are perhaps the slowest to react. With a lack of firm legal frameworks, what can businesses do to prevent themselves from falling afoul of social networking?
You may be forgiven for believing the law is on your side if you sack an employee over a remark on Facebook. Despite the fact a UK tribunal ruled last year it was acceptable for Apple to fire Samuel Crisp for critical comments made on his private Facebook feed, there are other precedents suggesting employers don’t simply have carte blanche.
Last year the US National Labour Relations Board found in favour of an employee whose contract was terminated after criticisms she had posted about management at the American Medical Response of Connecticut were drawn to the attention of her employers. Dawnmarie Souza’s comments concerned an investigation at the organisation, claiming her supervisor denied her access to union representation. As her comments were classed as “protected concerted activity”, and are therefore protected under the National Labor Relations Act, the NLRB found in her favour and the AMRC were forced to settle.
It pays to make sure you are on solid legal ground before taking action. One way to protect yourself is to ensure employees’ contracts clearly state the ramifications of poor conduct on social media. Rupinder Bains, legal partner at Bains Cohen and specialist on social media law, supports this. “If their contracts allow for it … where they’re being very critical of the company or of management in particular it would probably fall under gross misconduct and a breach of trust.”
According to OPP, the provider of psychometric and training tools, at least 55% of businesses would class themselves as ‘somewhat likely’ to use social media to screen candidates. A lot of employers might feel they’re on safe ground doing the same. But OPP warn that making a decision based on the information found on the web could leave you on tricky legal ground. The main risk? Bias and discrimination claims. Using social networking to vet candidates can inform interviewers of information such as race, religion and sexual orientation which aren’t supposed to influence decisions. It also allows you to misread information and mistake something innocent as inappropriate, which can potentially also open you up to claims that a decision has been made based on bias and subjective interpretation.
But is this something businesses need to worry about?
“It would be very difficult to sustain a claim that a candidate wasn’t offered a job based on discrimination. It’s one of the hardest things to prove unless it is evident.” Bains feels that employers are in the stronger position when it comes to vetting over social networks and the law is likely to find in their favour. “Candidates need to think about this beforehand and close down profiles if there’s something that shouldn’t be in the public domain.”
On whose account?
The legal ownership of social networking accounts is a grey area. Whilst often social networking account may be set up for the sake of PR or furthering a company’s brand, the amount of networking involved means an employee might feel they are entitled to maintain the contacts they have established. Last year the high profile case of PhoneDog vs Noah Kravitz hit the media, wherein the US mobile review site sued their former employee for $370,000 for the Twitter followers he took with him when he left. Despite the fact that he wasn’t tasked with maintaining a Twitter account, setting the account up on his own initiative, the case has been complicated by the inclusion of PhoneDog’s name at the beginning of his original profile name: @Phonedog_Noah.
Where does the law stand though?
Referring to similar cases she has dealt with involving blogs and other online intellectual property, Bains comments: “If they were written for the purpose of that company whilst in employment of that company … it belongs to the company. There’s no two ways about it.” And with a lot of company’s social networking accounts, even those cultivated by a single employee, this is definitely the case. But the Kravitz case demonstrates how little it takes to murky the waters.
Putting words in your mouth
You may not think your employees are the voice of your brand but to the public they are as much your mouthpiece as is your CEO or advertising campaigns. Perhaps most important is what your employees are saying about your business through their social networking use. Regardless of whether they are operating in an official capacity or privately, in Bains’s eyes any slips in a public forum will be laid at your door. “With regards to the public as a whole it will come down on that company.”
If as an employee you are entitled to use social media during work hours there is a chance that anything you say could be blamed on your employers as they have provided the platform. “Even doing something whilst in the course of your working day there are grey areas as to how much your employer will be liable for allowing that to take place.”
- Formulate your social media policy
- Monitor what is done under your name
- Establish reporting procedure
- Make clear account ownership
- Create usage policy for workplace social networking