European Employment Lawyers Association Conference
Social Media in the Workplace – the challenges and opportunities
4-6 June 2015Limassol, Cyprus
Introduction - Panellists
Mary Brassil McCann [email protected]
James Froud Bird & [email protected]
Ariane ClaverieCastegnaro [email protected]
Philip Nabben Bronsgeest Deur Advocaten [email protected]
The Rise of Social Media
1.44 billion MAUs*
300 million MAUs500 million tweets/day
350 million MAUs 200 countries
Qzone - 639 million MAUs in China
*MAU = Monthly Active Users
2.2 billion profiles
300 million MAUs
800 million MAUs
Overview
• Social media is different from traditional forms of media– Instantaneous – Global audience
• Organisations wish to maximise the opportunities social networks provide
• Need to address the risks– Cyberslacking - productivity– Misuse of social media
Scenario
• Advising XYZ plc, a large multinational company, who want to understand the risks posed by the use of social media in the workplace in the context of developing a Social Media Policy for its global business
Questions
• Can an employer use social media to screen candidates as part of the recruitment process? • Can an employer monitor employees’ social media
activity? • When does an employee’s use of social media become
an abuse of the working relationship? • Is an employee’s private on-line conduct actionable? • How does an employer protect its business and its
reputation? • Who owns LinkedIn contacts?
Examples of Social Media Vetting by Employers
Social Media Vetting as part of Recruitment Process
• Roughly 50% of employers review a candidate’s social media presence, slowly becoming a standard operating procedure (most reviewed sources: LinkedIn, Facebook, Twitter, Instagram, Google+)
• Employers are mostly:– Looking for information supporting their choice for
the candidate– Checking if the candidate has a professional
image/reputation– Checking what other people say about the candidate– Looking for reasons for not hiring the candidate
Is it Allowed to Vet Social Media (as part of the recruitment
process or otherwise)?
• Given the newness of social media, the legal landscape in most European countries is still almost bare of any guidance specific to social media
• However, existing laws concerning privacy and data protection give meaningful guidance on how to lawfully collect, monitor and use job applicants’ and employees’ social media content
• Sometimes big differences between countries (US versus EU countries), sometimes only small nuances
Best Practice (1)
• Provide notice and/or obtain consent before collecting and using social media information in the background checking process
• Beware that the restrictions to the use of certain categories of information for employment purposes (e.g. race or ethnic origin, disability etc.) also apply to information collected through social media
• Potential liability for bypassing user-created restrictions on access to social media content, especially in case of false pretences or coercion to gain such access
Best Practice (2)
• Information posted on publicly available social media sites: (almost) no protection under privacy laws
• Employers generally have significant latitude to take disciplinary action based on an employee’s social media activity using the employer’s electronic resources during work hours, provided that the employer has implemented a legally compliant electronic monitoring policy
• Be careful about taking adverse employment action based on an employee’s off-duty social media activity using personal electronic resources
US Practice vs. European Practice
• US: no expectation of privacy in the workplacevs.
• Article 8 ECHR: an individual’s general right of privacy extends to the workplace
• How about:– Asking/demanding social media passwords from job
applicants and employees?– HR department representatives trying to become a
‘friend’ of the candidate/employee on Facebook?
Other Considerations/Observations
• Works Council rights?• Tendency not to overestimate information obtained
through social media (screening focusing mainly on professional qualities)
• Legislation regarding social media vetting?• Codes of conduct, e.g.:– Netherlands: ‘NVP Sollicitatiecode’; – UK: ‘UK Employment Practices Data Protection Code’
Finally
“Twittering at work is not that bad”
Monitoring of Employee’s Use of Social Media
• Why monitoring?• How to monitor?– Do– Don’t
• Steps with:– DP Authorities, – Employee’s representatives, – Employees
Inappropriate Use of Social Media by Employees
• Legislative background– Right to privacy (Art. 8)– Freedom of expression (Art. 10) – Local statutory employment protection
• Case law – Reputational damage– Conduct and policy breach– Vicarious liability
Is there Privacy on Social Networks?
• (In)Compatibility?– Privacy = Intimate, Private Info/Behavior – Social Network = Open system of Creation
and Content Sharing
• Privacy v Lawful Evidence
Freedom of Expression• European Convention on Human Rights (Article
10): but big exception
• Smith –v- Trafford Housing Trust (UK case)– Religious views about gay marriage ("an equality too
far") posted on Facebook– Disciplinary proceedings resulted in demotion and
pay reduction – Smith won breach of contract claim, but Pyrrhic
victory
Reputation Concerns and Client Relationships…
Preece –v- JD Wetherspoon
- - Preece dismissed for lowering reputation;
- Unfair dismissal claim rejected;
- Employer had policy & 24/7 employee "hotline";
- Article 10 exemption applied
• Facebook dismissals - unfair– Whitham –v- Club 24 Ltd t/a Ventura• "I think I work in a nursery"
– Young –v- Argos • "Chocolate teapot" comment 'liked'
• YouTube dismissal - unfair– Taylor –v- Somerfield Stores (Scotland case)• Video clip of plastic bag 'assault'
• Twitter dismissals– Game Retail –v- Laws – Keith Mason –v Huddersfield Giants
Conduct and Policies
The Policy Imperative• Crisp –v- Apple Retail (UK) Ltd
– Unhappy employee dismissed for FB posts: "Once again fuck you very much work" "MobileMe fucked up my timezone…"
– Tribunal concluded fair dismissal: • No reasonable expectation of privacy • Limitation on freedom of expression justified • Importance attached to corporate image• Extensive induction & training were critical factors• Access to policies and the Apple "Credo" highly
relevant
Employer’s Liability
• Vicarious liability of employer
– Bullying / Harassment between colleagues– Intellectual property, copyrights
• Do Social Networks change something?
– Evidence?– Rules of responsibility?– ...
Social Media – who owns it?
• Contacts and connections are a key asset for many businesses
• Who owns the social media account?– Corporate /personal accounts
• LinkedIn – Largest professional network– Invite connections – LinkedIn User Agreement
LinkedIn • What proprietary rights exist in a
user’s connections?– Database rights – Confidentiality
• Case law• Hays Specialist Recruitment v Ions
(2008, UK case)– Ex-employee alleged to have
uploaded client details from employer’s database to his LinkedIn account before leaving to set up competing business
Case Law • Whitmar Publications v Gamage
& Ors. (2013, UK case)– Unlawful use of employer’s
LinkedIn groups– Accounts maintained as part
of employment duties
• Eagle v Edcomm (2013, US case)– Departing executive locked
out of her LinkedIn account – No clear ownership policies
Case Law • Nautech Services v CSS (2014,
Royal Court of Jersey)– Ex-employee transferred
confidential information from employer’s database to personal email address
– Copyright and confidentiality protection did not extend to the ex-employee’s LinkedIn account
– Court cited LinkedIn User Agreement
Practical Steps for Employers
• Implement Social Media Policy and LinkedIn Policy
• Statement of ownership • Retain login and passwords• Replicate contacts on
employer’s database• Contract provision assigning to
employer any proprietary interest in contacts
Social Media Policies
Social Media PoliciesPurposes
• Is it necessary?– Social Media and Working Time– Freedom of Expression v. Reputational
Damage– BYOD,– Remote Working,– Disciplinary Procedures,– ...
• Cultural & Legal Challenges
SOCIAL MEDIA POLICIESKey Features
• Right to be informed• Terms of use (professional vs. private)• Authorized / forbidden use• Controls• Disciplinary actions
X
SOCIAL MEDIA POLICIESBest Practice Guidance
• Transparency, loyalty, proportionality• Training• Integration of references to social media use in
other policies (IT, BYOD, remote working, bullying & harassment, discrimination)