Facebook: Facing the consequences

Implications for employees using social networking websites

According to its tagline, Facebook ‘helps you connect and share with the people in your life.’ Myspace promotes itself as a space for you to ‘express who you are’. Twitter seeks to keep people connected by answering ‘one simple question: What are you doing?’

Given these objectives, and the booming popularity of these and other networking websites, it was inevitable that they would become a relevant workplace issue, for example, by allowing employers, prospective employers, employees’ co-workers and the community at large online access to a worker’s private thoughts and personal life.

According to the Courier Mail, an online poll conducted in October 2008 of 1,000 Australian employers found that 66% of employees had accepted co-workers as “friends” or “contacts” on Facebook. Correspondingly, the poll found that 55% of employers had blocked employees from accessing networking websites at work.

At this stage, Courts and the AIRC have not dealt with these issues in great detail, however, recent examples in the media, including Telstra, North Melbourne Football Club and Dominos, have highlighted what is a growing issue for employers. The problem is exemplified when a “friend” or “contact” places embarrassing material on sites such as YouTube.

Relevance to the workplace?

It is clear that material on networking websites can be relied upon by employers if they demonstrate that an employee has committed misconduct in the workplace (i.e. by filming or taking photos of the misconduct and posting it online).

However, it may also be possible for an employer to rely upon material or evidence from these websites in relation to other employee matters, including the following:

• Not being ill or injured when they have claimed sick leave

• Acting against an employer’s interests by making disparaging comments online about the employer or damaging the employer’s reputation

• Breaching company policies, i.e. relating to public/media comments, or use of the employer’s computer or IT system or

• Reference checks by a prospective employer

In the course of employment?

Where the conduct is such that an employer is considering disciplining or terminating an employee’s employment, a central consideration will be whether the online conduct occurs in the course of employment.

According to the Full Bench of the AIRC, conduct (i.e. out of hours conduct) that does not occur in the course of employment will not allow an employer to claim that the conduct constitutes a valid reason for termination, if the conduct could have no effect on the employment relationship. Conduct may constitute a valid reason where it causes damage to the employer or its business.

Other issues an employer should consider include the following:

• Whether the employee is identifiable online as an employee of the employer

• Whether the employee had been notified by the employer as to its expectations, and whether that policy had been consistently applied

• Whether the employee was actually responsible for posting the material or making the comment and

• Whether the material was publicly accessible or distributed widely

Recommendations for employers

Whilst employers may have policies that deal with the media, email and internet use, these policies should now be tailored more specifically to communicate to employees the employer’s expectations regarding the use of networking websites and the potential harm that could be caused to the business by the publishing of inappropriate conduct which could impact upon the employer.

For example, employers may wish to advise their employees that they are entitled to make their own private comments on a personal Facebook page or Twitter blog, provided that the comments do not have the potential to damage the employer’s reputation.

An employer could suggest that employees are not readily identifiable by name or profile as a representative of the employer’s business. This may avoid any public comment, whether of a personal nature or otherwise, affecting the employer’s reputation.

Further, a policy may also recommend or stipulate the following:

• Employees must maintain privacy settings so that only the employee’s friends or contacts can access the material

• Employees should not be friends or online contacts with clients or customers of the employer and

• Employees will be held responsible for any material that is posted on their behalf or on these sites by their friends