Keeping Up With The Times
November 8, 2017
We are continuing to see a range of technological advancements enter Australian workplaces at increasing rates. Jessica Fisher, Director of FCB Group and Partner at FCB Workplace Law, explores how you can more successfully respond to disruptive technologies in your business.
In October 2017, over 17,000,000Australians logged into their personal Facebook accounts. The rise of smartphones means that businesses and their employees are using social media at unprecedented levels as a working tool, but also for personal use while at work.
The Australian employment landscape has seen other technological advancements changing the way that employers and employees carry out their day-to-day tasks. How effectively businesses manage and respond to these changes is increasingly becoming the point of difference in an increasingly competitive marketplace.
Unfortunately, the legal framework regulating technology and its deployment in the workplace has not kept up to date with these technological advances.
So what are the legal risks?
In our experience, the most common legal risks that arise for businesses when dealing with the misuse of online platforms such as social media are:
• Bullying
• Discrimination
• Sexual harassment
• Misconduct – unfair dismissal and adverse action
• Breach of contract – confidentiality
• Brand damage
• Impact upon productivity
• Impact upon culture
• Breach of contract – implied terms
• Breach of contract – post-employment restraints
• Security risks
With millennials now a large part of the workforce, and with them, technology. These employees have grown up with the expectation that responses to their questions and contribution should happen immediately. Whether through text, email, LinkedIn message or post, everything happens so quickly, often with little thought as to its impact, possible effect or interpretation.
Can you discipline an employee for their misuse of social media?
Case law makes it clear that there needs to be a sufficient connection between the conduct online and the employment relationship. This includes where the employee’s conduct:
• is likely to cause serious damage to the relationship between the employee and employer;
• damages the employer’s interests; and
• is incompatible with the employee’s duties.
These circumstances may allow an employer to take lawful action.
What if the alleged conduct occurs away from the workplace?
In some circumstances, employees may be lawfully disciplined for conduct that occurs away from the workplace and outside of work hours if the conduct has adverse consequences on the employer’s business. If you are able to answer yes to any of the three points raised above, it is likely that the action will have a negative impact on the business, is able to be investigated and possibly result in disciplinary action.
The rise of social media platforms such Facebook, Twitter, Instagram, LinkedIn, Snapchat and many others have created new challenges for understanding and dealing with workplace bullying. When colleagues follow each other on Twitter or add each other on Facebook, they can now stay in contact outside of work hours and activities.
The challenge for employers is determining the extent to which they should regulate employees’ interactions via social media, particularly where such interactions have consequences on workplace relationships and/or the health, safety and welfare of employees at work.
Conceptually, there is little doubt that using social media to repeatedly behave unreasonably towards a worker constitutes bullying behaviour.
Considering issues of privacy
Many employers view employees’ social media accounts, whether as a part of an investigation into bullying or throughout the recruitment process. But is this a breach of the employee’s privacy?
Employers should not run into issues with privacy legislation as long as:
• Collection of the employee’s personal information from an online social media account was ‘necessary’ for the employer to execute the misconduct investigation
• It only has to be ‘reasonably necessary’; doesn’t have to be ‘essential’ for it to be permissible
• It is reasonable for the employer not to attempt to collect the information directly from the employee as this could potentially compromise the effectiveness of the investigation.
Protecting confidential information
Social media platforms have become accepted and integral tools of trade for many businesses today. However, the law has not developed at the same pace to afford proper protections for the confidential information and intellectual property of organisations.
What would you do if a former employee used your current client/customer contacts to seek business by sending an “invitation” on LinkedIn to those contacts that they made while working for your business?
If you have a company branded social media account, accessible by your employees, do you have a social media policy covering the ownership and permitted use of such account?
A social media policy should cover that posting content on the social media account, as well as names of clients, contacts, email addresses and all communications contained within the account remain the property of the company at all time. The policy should also cover that at any time an employee leaves the business, all account information, passwords, email addresses etc. should be provided to the company.
Putting practices in place to prevent misconduct
The issue of being able to assert ownership of IP, confidential information and social media accounts will likely be determined by a combination of the conduct of the parties, terms of the employment contract and policies in place. Get the proper advice and supporting legal documentation to protect your legitimate business interests to ensure your business has the legal ability to control all aspects of technology used by your employees. Remember there is no one size fits all when it comes to managing technology use in the workplace, but rather a range of factors need to be considered for each situation.
Employment policies
Employers must have comprehensive policies in place that reflect their position on use of technology at work, including social media and public comments. Such policies should be regularly updated and reviewed in order to keep up-to-date with the constant emergence of new technologies, changing business needs and approaches and attitudes.
Comprehensive workplace policies should specify that such policies cover all team members and are not limited to the boundaries of company premises or standard working hours.
Employment Contracts
Despite the limited guidance of case law, employers do have the ability to influence the control of confidential information and intellectual property through comprehensive employment contracts. The ability to control the disclosure of such information comes down to specifically worded clauses. For example, requiring employees to either “delete all contacts made during the course of their employment”, or requirements that on termination, “an employee must transfer all information including passwords, email addresses and contacts to the employer.”
Training
It is one thing to have a policy in place, but another to properly implement it. If a business wishes to be able to rely on a policy (for example, in disciplinary action) it needs to make sure that their employees are aware and understand it, and are aware of the consequences for breaching it.
Where is the workplace headed?
The ever-changing world of technology means that the likelihood of jobs becoming more automated is increasing. A recent study indicated that 40 per cent of jobs in Australia have a high probability of being susceptible to computerisation and automation in the next 10 to 15 years. This may or may not make it easier to manage the ownership of confidential information, intellectual property and the other inherent risks. The legal system may also seek to catch up to the dynamic world of work – but in the meantime protect your business within the legal framework as best as you can.
If you have any enquiries, please contact Jessica Fisher at (02) 9922 5188 or jmf@fcbgroup.com.au
