An employee might argue their post constitutes freedom of speech
When it comes to social media, employers and employees must be extremely careful with what they post and how their actions can be perceived.
In fact, one notable case in New Zealand found employees can get in serious trouble for even 'liking' a Facebook post.
A few years ago, Rachel Blylevens was dismissed by Kidicorp in Tauranga after spending more than two years at the company.
Blylevens 'liked' and commented on posts about her employer on the social network and engaged an advocate, Rachel Rolston, to help her with the posts. Rolston described Kidicorp as a “toxic” environment and accused the company of “corporate bullying”.
Kidicorp’s investigation found that the employee’s actions breached its media and social networking policy, leading to a loss of trust and confidence.
For Employment Relations Authority member Rachel Larmer, the fact that Blylevens 'liked' the posts meant all her Facebook friends and many more people could see it in their newsfeed.
'Liking' the posts, according to Larmer, constituted an endorsement of the opinions expressed in those comments.
Sherridan Cook, partner at Buddle Findlay, told HRD that employers can take action against employees for their social media behaviour, as long as it’s established they brought the organisation into disrepute.
Cook said that many workplace cases relating to social media involve the employee contributing something negative about their employer, denigrating them in some way.
Read more: How recruiters check for red flags on social media
“Sometimes the question can be whether the employee is actually identifiable, but if there is doubt about that then the employer can still take action to investigate that,” he said.
However, the employee does not always have to say something negative about the company to get in trouble. It might be a matter of saying something sexist, racist or derogatory that is inconsistent with the values and policies of the company.
It’s something employers in New Zealand have to be particularly mindful of, given 74% of the population are active on social media, according to Statista.
For Cook, the key test to determining how unacceptable the comments are is establish a link between the employee’s social media behaviour and the employer.
“Often these days you can do it relatively easily because there may be other information on the internet that would assist in that, like the employee’s LinkedIn profile,” he said.
So, for example, if the employee makes unacceptable comments on social media then anybody searching that person’s name could find their profile or find the employer’s website with their name on it
“Then the employer could use that and rely on that as being enough to establish that link and take disciplinary action against the employee because it has brought them into disrepute.”
In the case of Blylevens and Kidicorp, the company had a media and social networking policy, which made clear that employees can be disciplined for “inappropriate” use of social media.
The company also conducted a thorough investigation, considering all the relevant circumstances and gave the employee the chance to comment before it came to a conclusion.
Cook said that if an employee says anything that could be construed as inappropriate or discriminating, the test is whether reasonable people in the public domain would be able to draw the same conclusion as the employer.
“Obviously, employees argue that they are entitled to freedom of speech and what they say in their own time might have nothing to do with their employer, he said.
“So that would have to be investigated in the context of what was said and whether the information might link the employee to the employer would need to be looked at closely.”
Read more: The key to a strong social media policy
Further social media tips for employers include:
Make the rules clear: As long as employees understand that you can and will look at their social media posts, they’re far less likely to do something against policy. This includes making them aware that communication on Facebook or Twitter can have a similar or more intense impact than saying it to somebody’s face or writing into a newspaper.
Permission forms: Create a standard permission form staff can sign to give their consent for photos or videos of them to be taken and published on social media.
Bullying: Just as it’s important to have guidelines around behaviour in the physical workplace, so too is it important to address virtual behaviour.
