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Monday 11th May 2015
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When can you take action over an employee’s Facebook post?
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In today's Workplace Bulletin:
- NZ employee in hot water for posting about agreement negotiations
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Dear Reader,
Have you taken a look at your employees’ Facebook pages recently?
How and when you do so is a matter for sound and careful judgment – but a 2013 CareerBuilder survey suggested that 39% of employers view candidates’ profiles on social sites. And no doubt, many of those employers keep tabs from time to time in future. |
In response, more and more employees are doing the sensible thing and safeguarding their profiles with private or customised settings.
But what happens when they make a post on someone else’s public page? A recent New Zealand news story caught my eye and left me wondering where the boundaries are – and whether the result would be different in Australia.
The situation began when a Bay of Plenty meat worker, Roberta Ratu, posted a message on her local MP’s Facebook page. Ms Ratu and other employees have been embroiled in negotiations for a new collective agreement with their employer for nearly two years now. Feeling frustrated about the progress, she wrote to the MP asking him to extend his support and sign a community petition.
When her employer saw the public message, it sent her a warning letter saying she could face dismissal if the Facebook post was not removed. |
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Even if you aren’t using social media,
your employees definitely are!
Click here to discover a simple way to manage the legal risks your business faces thanks to social media
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The business referred to the post as a “public media release” that was a breach of its code of conduct, and of a clause in the bargaining agreement with the union that required a “consultation process for media releases”.
But the employee (and her union) are holding firm. It’s been nearly a fortnight now, and the offending post is still there (the MP, who spoke out in Ms Ratu’s support, is in no rush to delete it himself)!
I’m waiting with baited breath to see what happens – but it got me thinking about whether this situation could be any different this side of the Tasman.
As always, I end up scrolling through Employment Law Practical Handbook Editor-in-Chief Charles Power’s eBook, Social Media & the Law 2015.
Charles stresses the value of a comprehensive social media policy. Your policy needs to:
- Define ‘social media’ (i.e., confirm which websites and platforms it applies to);
- Define ‘reasonable use’ of social media in the workplace and during work hours;
- Describe unacceptable social media behaviour (including acts that may bring your business or its employees into disrepute);
- Outline the consequences if an employee fails to comply with the policy, and;
- Refer to other applicable policies (particularly your policies on bullying, harassment, and privacy).
In the eBook, Charles goes into much more detail about how to word that policy. Of course, some employee behaviour will be misconduct whether you had a social media policy or not. Bullying was bullying before Facebook existed.
But without a dedicated social media policy, it’s unlikely you could control much of what an employee posts on a public forum.
And there’s another thorny issue. Your social media policy can set boundaries, but it can’t change the law.
Specifically, your social media policy won’t let you take unlawful adverse action against an employee who is engaging in a protected activity. Examples of protected activity include:
- Encouraging or participating in a lawful activity organised or promoted by a union, or;
- Representing or advancing the view, claims or interests of a union.
It’s obvious that these forms of protected activity won’t always result in wine and roses for an employer. But unless your employee is breaking the law or defaming you, it’s unlikely to be something any social media policy can punish.
There’s one more takeaway today. You may be wondering how I know about Ms Ratu’s employment dispute. I certainly didn’t spend hours reading a politician’s Facebook page in my spare time.
I know about it because when she received the letter threatening her with dismissal, Ms Ratu went straight to one of the biggest prime-time current affairs shows in the country to speak out.
Perhaps the biggest lesson here is for your business is to handle a small publicity issue carefully – before it spirals into a huge one.
Until next time,
Joseph Nunweek
Editor, Workplace Bulletin
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