“Going Viral – For the Wrong Reasons”: A Timely Caution to all Social Media Users

Going viral on the web can be great for bloggers, Instagrammers, Tweeters and Facebook users, but what happens when an employee posts a “status”, “hashtag” or uploads content that is potentially offensive, intimidating or injurious to the reputation of their employer.

The world-wide phenomenon of social media is growing exponentially, and with access to the internet now available on smart phones, tablets, laptops and almost all conventional computer devices, we are able to connect and interact with our peers and “friends” on social networking sites instantaneously with the click of a button. The emergence of social media has led many employers to dramatically rethink the way in which organisations protect their brand, recruit and effectively manage an employee’s out-of-hours conduct.

This issue is not only confined to Australia, but is a matter which the world seems to be grappling with at large. In the United States for example, award winning news anchor, Wendy Bell, was recently fired from her employment after posting racially insensitive posts on Facebook about a fatal ambush shooting in a desperately poor predominantly African-American suburb of Pittsburgh. The Facebook rant was posted in the following terms:

“You needn’t be a criminal profiler to draw a mental sketch of the killers who broke so many hearts two weeks ago today…they are young black men, likely in their teens or in their early 20s. They have multiple siblings from multiple fathers and their mothers work multiple jobs. These boys have been in the system before. They’ve grown up there. They know the policy. They’ve been arrested.”

Although the high-profile news reader apologised and said her words were insensitive and could be viewed as racist, this was not enough to save her employment. There have been similar instances in Australia in which the Fair Work Commission and the Courts have confirmed that posting on social medial networks to express displeasure with an employer or co-worker can impact the employment relationship and give rise to circumstances warranting dismissal, including immediate termination. However, in order to rely on serious misconduct as a reason for termination, and to protect their business, employers need to determine their strategy, update workplace policies and consider educating staff about acceptable social media conduct and responsible use of technological resources.

If no clear stance is taken on the issue, employers may be exposed by making misinformed decision as was the case in Fitzgerald v Smith T/A Escape Hair Design [2010] FWA 735. In this case, Commissioner Bissett ruled that while comments posted by an employed hairdresser were silly, they did not by themselves provide a valid reason for dismissal because the postings were not detrimental to the business and the employer had not raised its concerns with the employee at the time they were made. In this particular instance, the hairdresser posted the following comment to her Facebook account:

“Xmas ‘bonus’ alongside a job warning, followed by no holiday pay!! Whoooooo!  The Hairdressing Industry rocks man!!! AWSOME!!!”

In assessing whether social media use by an employee is inappropriate, the Commission may consider a number of factors, including:

• whether the employer was named;
• who has access to or can see the comments;
• how long the comments were posted;
• viewed objectively, whether the comments would adversely affect the employer’s business (or reputation), or have the potential to do so; and
• whether the employer raised any concerns about the comments at the relevant time.

It is important to note that employers may find themselves being held vicariously liable for the conduct of their employees on social media sites, even for after-hours conduct, that gives rise to issues of sexual harassment, bullying or discrimination. It is not enough for an employer to turn a blind eye to what is posted on social media sites, and failing to act in these circumstances will be viewed in the same way as an employer failing to act on an issue taking place in the workplace.

Given the explosion of participants on social networking sites, the Courts and employment Tribunals are seeing an increasing number of claims being brought as a result of terminations relating to social media use, including excessive social media use during work hours. It seems that the most effective way to mitigate the risk of ending up defending a claim is to set clear boundaries during employment, through the administration of a carefully drafted social media policy.

A well drafted social media policy should cover:

• to whom the policy applies;
• what is acceptable conduct and what is not and setting out of specific examples to make it abundantly clear;
• that merely having unacceptable comments on your Facebook page (even if they are not your comments) is not tolerated;
• that ignorance of Facebook settings and controls is not accepted as a defence to breach of the policy; and
• that the policy applies at all times, whether the employee is at home, at work or using social media within or outside of work hours

Other strategies to manage the risk of social media misuse include providing staff training and implementing software to monitor or limit excessive or objectionable use by employees during work hours. If you have concerns about social media use in your workplace, or wish to further discuss the steps that can be taken to mitigate the risks in this area, please do not hesitate to contact us for specialist advice or assistance.

This alert is not intended to constitute, and should not be treated as, legal advice.