European Employment Lawyers Association Conference

Social Media in the Workplace – the challenges and opportunities

4-6 June 2015Limassol, Cyprus

Introduction - Panellists

Mary Brassil McCann FitzGeraldmary.brassil@mccannfitzgerald.ie

James Froud Bird & Birdjames.froud@twobirds.com

Ariane ClaverieCastegnaro ariane.claverie@castegnaro.lu

Philip Nabben Bronsgeest Deur Advocaten p.nabben@bd-advocaten.nl

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)