Inbox: Sticky stuff and foolish remarks

Social media presents sticky employment trap for unwary staff and lesson for management. So says DLA Phillips Fox partner John Hannan who warns that managers should take staff misuse of social media seriously. Hannan advises business leaders to introduce policies to control the misuse of social media – both inside and outside the workplace.
The good news, he says, is that New Zealand law already allows for employers to introduce policies that can help control misbehaviour on social media.
Social media is pervasive, he notes, and benefits organisations who use it for marketing.
“But sometimes, staff use social media in way that can place at risk their employment, and bring their organisation into disrepute. If staff make derogatory comments about their place of work or their colleagues, the good name of their employer or organisation can be damaged. Employers can get around this by introducing policies around the use of social media.”
Hannan says there are dozens of examples internationally where employers have taken action around derogatory comments.
“Even more dangerous are the risks staff run when they make remarks on social media or act in way which may call into question their fitness for their role.”
According to Hannan, it makes little difference whether these comments are made by employees in their positions with the organisation, or whether comments are made privately in staff’s own time on their own social media pages.
“If the remarks or actions can be tied back to person whose role and responsibility requires more appropriate behaviour, or those remarks reflect badly on their employer, then staff need to consider the consequences – as in the recent Charlotte Dawson case,” he says.
“In this case, staff member of Monash University was initially suspended for what she said on Twitter in her own time, on her own account (although she was later reinstated). This staff member was ‘student mentor’. The university looked at the person’s role, and examined her fitness for it in the light of what she had said to Ms Dawson.”
Other examples where employers also took action overseas:
•A primary school teacher posted photographs of herself sober, but with alcohol, on holiday. She was suspended.
•A comedian who voiced insurance ads for company that was an insurer for major portion of Japanese households, tweeted bad taste jokes following the tsunami. He was fired from his voice job.
Hannan says that, like overseas employers, Kiwi managers can also make it abundantly clear what type of behaviour is not tolerated.
“They can formulate policies that set limits. For many, policies can be introduced without any issues because policies do not require agreement from staff (they are not terms and conditions of employment).
“However, with collective agreements, some organisations may need to look first at the terms of those agreements to see what consultation or negotiation is required first with unions.”
Hannan says policies should expressly prohibit:
• Disparaging comments about the organisation, colleagues, clients or customers;
• Specific subjects such as disparagement of race, gender or sexual orientation;
• Mentions of illegal drugs;
• Mentions of personal information about colleagues etc without their written consent;
• Disclosure of confidential information or information covered by privacy legislation; and
• Disparaging or bullying comments about third parties during work hours.
Policies should specifically warn about, and prohibit, the use of social media which raises issues about an employee’s ‘fitness for role’.
“This needs to be spelled out specifically – even in separate document which is signed by the employee,” says Hannan.
He adds that management should also seek to obtain continuing post-employment obligations relating to social media in employment contracts, banning derogatory remarks after employment has ended. This is similar to the way confidentiality clauses work.
“Policies like this should be introduced as part of staff education. Staff benefit from them too. Social media lives forever and foolish remark can destroy an employment future.” M