An independent review of a Queensland government agency and the Fair Work Commission both agree that social media policies are important in the digital economy.
A social media policy suggests a more authoritative document than a government department’s ‘social media quick reference guide’. A quick reference guide is not a sufficient exercise in due diligence in response to perceived social media risks. This is according to an independent review contained in the ‘Independent review of an incident involving Queensland Fire and Emergency Services employees’ report submitted to the Queensland government in December 2014.
The review of the Queensland Fire and Emergency Services (QFES) complaints and handling procedures was undertaken by an independent investigator, Ms Margaret Allison in response to allegations of harassment and bullying of female staff on social media, specifically Facebook. While her investigations revealed that social media had a ‘less significant role than originally alleged in the media’, Ms Allison affirmed that harassment and bullying generally are important issues, particularly now that social media is the ‘mainstream’ communication method between colleagues.
The social media quick reference guide did not import that the guide was an authoritative document and uncertainty surrounded how this document was made known to staff. Ms Allison called for a ‘review and re-issuing of the guide in policy form to clarify its status and confirm its content.’ The significance of a social media policy in regulating employee conduct also resonates in the private sector.
Organisational social media policies
The Fair Work Commission in Stutsel v Linfox Australia Pty Ltd supported the notion that business organisations should implement a social media policy. The decision highlighted that having no social media policy was ‘not sufficient in this electronic age.’ Whilst it is desirable both government and private organisations implement social media policies to regulate employee conduct at work and conduct outside of work hours, organisations first need to consider these three important issues.
- No ‘one size fits all’ social media template: Two policies
Drafting a social media policy can be different from business to business. This largely depends on the company‘s culture and business strategy towards social media use. For example, a retail or marketing firm conducting business online would focus on risk managing their social marketing strategies in how they interact with customers online. This focus would be different from a professional services enterprise which would be more concerned with maintaining the goodwill of clients. What both businesses have in common is that they need to protect against the risk of damage to their reputation.
A social media policy needs to be individually tailored to not only suit the way in which social media is used at work for work purposes, but at the same time needs to address personal conduct outside of work hours. Policies need to reflect clear boundaries around employees work and personal communications. Ideally, and for the purposes of clarity, there needs to be two social media policies or at least two parts if one social media policy exists. For example, Part 1: Social Media Conduct for Work and Part 2: Personal Social Media conduct outside of Work.
- A Social Media Policy needs to regulate the conduct, not the communication medium
Even though the Fair Work Commission supports organisational social media policies, the Commission stopped short of what the policy should contain. In terms of regulating Personal Social Media conduct outside of work, employer’s regulating private conduct outside of work is not new. Employers implement social media policies to set standards of behaviour in an effort to reduce the risk of reputational harm and protect their legitimate interests. Contractually, employees have an implied obligation of good faith to their employer which means they should not do anything that will harm their employer’s legitimate interests. This includes private conduct which occurs outside of work time and includes the online space of social media. Whilst there can be a blurring of the professional and personal, the public and private space, employers should be careful that they do not encroach too far into an employee’s life. Employers setting standards of behaviour which impact how an employee privately communicates online, for example, forbidding an employee from posting anonymously or pseudonymously, may likely be unlawful. Imposing constraints on how employees communicate on social media goes beyond regulating conduct. A social media policy should be fair and balanced which means it should be drafted to fit within the scope of the employment contract and not exceed implied contractual or employment obligations. Ensuring that a social media policy is fair and one which does not unreasonably impact employee interests, can be a delicate balance and one in which I strongly suggest you seek legal advice.
- Don’t window dress: promote, review and train staff
An organisation does not exercise sufficient due diligence in response to perceived social media risk simply by having a document marked ‘social media policy’ somewhere on the organisation’s intranet site and without review and staff training. Training not only reinforces your organisations expectations and standards of behaviour in this space, it provides an avenue for collaborative discussion whereby ambiguities and concerns can be raised and clarified through examples and scenarios. Staff training should be conducted every six months to account for:
- Review of case law which is evolving from the relationship between employees, work and social media, including sharing and re-tweeting content and blogs.
What businesses need to do
Businesses can no longer ignore the risks (and of course benefits) of social media. Formalising a ‘quick reference guide’ into a social media policy requires careful consideration of how you use social media for business, what you are regulating: the conduct, not the communication medium, and reinforcement of the significance of the policy through review and follow up staff training. Even if businesses do not use social media as part of their overall business strategy, employees are likely to be using social media platforms and what they post or share online may adversely impact legitimate business interests. The old adage, ‘having a plan is better than having no plan at all’ can be applied to the digital economy where ‘having a policy is better than having no policy at all!’
Have you got a social media policy or guidelines that need updating to suit your business culture? Is your social media policy legally enforceable against an employee?
If you have any concerns or questions regarding your workplace Social Media Policies, please don’t hesitate to contact me.
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