Peter Fletcher

You need to have a social media policy…or not.

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For someone who runs social media policy courses, this may seem like strange advice. It’s not. Some organisations don’t run well with heavyweight policy. It just doesn’t fit with their culture.

In organisations like those, guidelines and shared values work better than policies. In other words:

Social media policies waste time policing what is okay or not okay to publish in a single channel. But it’s impossible to anticipate every single scenario in social media, and on top of that, you don’t want to end up slowing down your publishing frequency, since speed counts on social media more than in other channel. So instead of a full-fledged social media policy, put together some guidelines that are easy for your employees to remember and keep in mind as they make their own decisions about what to publish in social media. As we mentioned in number 14, at HubSpot, our policy is simply to “use good judgment.”

And as much as it’s great advice, it’s probably more than a little dangerous, especially for organisations that are bound by heavy government regulations. When one misstep could land you in a tonne of hot water, it makes sense to err on the side of caution. That requires leaders to carefully weigh up the business risks of giving their people a voice. On this issue, leaders can’t sit on the sidelines.

Employers: If you’re going to embrace social media don’t be think-skinned

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What should an employer do if they find an employee’s Facebook post that’s critical of the business, fellow employees, or in someway potentially damaging.

According to WorkplaceInfo there are 5 steps to take before making the decision to terminate.

  • Act on issues promptly when they occur
  • Beware of forming a view about allegations prior to the conclusion of any investigation
  • Consider whether the requisite connection or nexus between the conduct and the workplace/employment relationship is established before taking any disciplinary action
  • Take into account the surrounding circumstances, including the employee’s length of service, previous performance or disciplinary issues, reasons given, and whether there was a clear policy in place at the time of the incident, and
  • Beware of making a decision to terminate an employee before all relevant information has been gathered and considered.

The message here for employers is to make haste slowly. Instead of reacting, consider the consequences of being heavy-handed. A disproportionate response usually brings with it a concerted effort on the part of employees to avoid any form of surveillance. This might include de-friending the employer, manager, or other staff or, in the worst-case scenario, heavily restricting their privacy settings or blocking people they think could pose a threat.

It’s smarter for employers to take a more enlightened approach by letting people know that they know about the offending behaviour and working with them to address any issues that might give rise to posting negative comments on Facebook.

Linfox case shows courts will rely less on claims of employee ignorance

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I’ve often likened Facebook as a pub conversation. While the analogy is useful in describing the social aspects of online interaction, the courts in Australia take a different view.

Making comment on the decision of the Full Bench of Fair Work Australia in Linfox Australia Pty Ltd v Glen Stutsel [2012] FWAFB 7097, law firm partners Paul Burns and Kate Jenkins state:

The Full Bench observed that the electronic form of the conversations gave the comments a different characteristic and a potentially wider circulation than a pub discussion. The Full Bench noted that employees ought exercise considerable care in using social networking sites, highlighting the fact that the relevant comments were published to a wide audience (including Linfox employees), the ease of forwarding comments on to others and the permanent nature of those comments.

Importantly for employees, Burns and Jenkins believe that courts will place diminishing weight on claims that employees were unaware of the consequences of their Facebook activities. Employees can no longer expect that their Facebook profile is their personal space to say whatever they like. Rather, they have responsibilities to behave in accordance with their corporate policy and thus protect their job.

Slow-to-act hairdresser loses unfair dismissal claim

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Smart businesses have a social media policy. But they don’t just have one, they monitor how their employees use social media and they take immediate action when there’s a breach.

In Miss Sally-Anne Fitzgerald v Dianna Smith T/A Escape Hair Design
[2010] FWA 7358 Fair Work Australia Commissioner Bissett found that an employer’s termination of an employee was “harsh, unjust and unreasonable” and was ordered to pay $2340.48 less tax.

The employee was initially fired over a range of issues including posting to her Facebook profile: “Xmas ‘bonus’ along side a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!! [sic]”

The Commissioner found that, while the Facebook post was “…a foolish outburst”, it was not detrimental to the business as it remained published for around two weeks and was only visible to the employee’s friends.

According to Kate Jenkins, a partner at law firm Herbert Smith Freehills, “…if the employer had had a clear policy about appropriate use of social networking tools and acted promptly when she became aware of inappropriate comments, the employer’s position would have been different.”

It’s a timely reminder for employers to not only have a social media policy but take active steps to educate their employees about their obligations and to take action when a breach of their policy is identified.

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