Workplace Social Media Policy

Most employees in Australia have at least one account on platforms such as Facebook, Twitter or LinkedIn. While nearly ubiquitous, there are potential risks for employers when it comes to employee use of social media. The use of social media may impact productivity at work; employees may inadvertently share confidential or sensitive work information and employees may express views that are detrimental to the company’s brand. Many employers have introduced workplace social media policies to tackle these potential problems. This article explains the laws relating to the enforcement of social media policies in Australian workplaces.

Workplace Social Media Policies

Most social media policies are drafted to apply broadly to all online platforms, from Facebook and Twitter to chat rooms, blogs and other social networks.

A workplace social media policy is typically focused on three different uses of social media: the use of personal social media while at work, posts that may reflect negatively on the employer, and the potential for breaches of confidentiality. The policy should provide reasonable guidelines on prohibited content and the potential disciplinary actions for contravening policy rules.

Impact On Productivity

There is no doubt that social media is distracting. Because workers can use their mobile phones to easily read and post during the working day, it can dramatically affect workplace productivity and focus. A social media policy should therefore include limitations on social media use inside the workplace. For instance, the policy might state that the company allows employees to access social media at work, but the employee must ensure that this does not impact their productivity. Alternatively, an employer might implement a ban on the use of social media during working hours.

Detriment To Employer’s Reputation

Most businesses work to create and maintain a consistent brand on social media. There have been numerous examples of employers who have had to publicly distance themselves from employees who posted tasteless or offensive content on social media. Sometimes the employer has been forced to terminate the worker’s employment to avoid customer backlash. A social media policy should therefore clearly prohibit employees from posting offensive content on their personal social media accounts. The policy should also outline the possible consequences of a breach of these rules.

The leading case of Rose v Telstra Corporation Limited [1998] established that an employer is justified taking disciplinary action over social media posts, even if they are made from home and intended to be private. The Fair Work Commission noted that it would be foolish for an employee to assume that they can say whatever they like on social media without consequences. An employee can take adverse action if the social media activity:

• Causes damage to the employment relationship;
• Contravenes the employee’s duty as an employee; or
• Is detrimental to the employer’s interest.

However, an employer needs to tread carefully to ensure that they are legally able to act against an employee based on a breach of a social media policy. Rugby Australia recently settled an unfair dismissal case with Israel Folau after he was terminated for a breach of the Player Code of Conduct. Folau posted to his personal social media that “hell awaits drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters”. Folau claimed that this did not constitute hate speech or discrimination, as he was merely expressing his conservative Christian beliefs.

Confidentiality

Most employers have policies that pertain to the distribution of confidential or proprietary information. A social media policy should explicitly prohibit an employee from posting confidential information on social media platforms. The policy should also specify that an employer may take adverse action for even inadvertent exposure. For instance, in 2017 the daughter of an Apple engineer posted a vlog to Youtube revealing secrets about the unlaunched iPhone X. The engineer was subsequently fired for breaching confidentiality and company policy.

A social media policy can also reinforce other workplace policies, such as anti-harassment. A social media policy should instruct employees to avoid posting anything that would make another co-worker uncomfortable, such as derogatory or defamatory content that might offend another gender, sexual orientation, or race.

In Mr Matthew Thompson v 360 Finance Pty Ltd (2021), an employee was summarily dismissed after posting sexual memes about a co-worker to Facebook. Mr Thompson maintained there was nothing inappropriate in his behaviour. The employer terminated Mr Thompson for breach of their social media policy, misuse of company property to post the memes, and sexual harassment.  When Mr Thompson filed an unfair dismissal claim, the Fair Work Commission determined that his conduct was inappropriate. The Commission also noted that he showed no remorse or insight into the significance of his actions. The FWC dismissed the unfair dismissal application as the employer had validly terminated his employment on the basis of serious misconduct.

Corporate Social Media Policy

In addition to rules about the use of private social media accounts, the policy should address corporate social media accounts. Often a business’ social media account is run by specialist social media consultants, who handle online communication in line with the business’s voice, brand and values. Obviously, an employer can set prescriptive rules about posting to a company’s own social media account. For instance, the policy can state that the employee should act responsibly to protect the company’s reputation by being polite and respectful. When posting, employees must follow the company’s confidentiality and data protection policies, and observe all laws that relate to copyright, trademarks and plagiarism. An employer should implement procedures to monitor content on corporate accounts and quickly remove or amend any inaccurate, offensive, or defamatory content.

Distributing A Social Media Policy

An employer should make sure all employees read and understand the social media policy. Because social media is always changing, the policy should be a living document to reflect new rules and regulations.

An employer should tailor their social media policy to the company’s needs and workplace operations. It is highly recommended for an employer to consult a legal professional before drafting a social media policy to ensure it is comprehensive and legally enforceable. Employees should take care to follow their employer’s social media policy to avoid disciplinary action or even termination. Please contact our specialist commercial law team on 130 038 223 for any employment law advice or representation.