social media - employment law pitfalls

SOCIAL MEDIA – EMPLOYMENT LAW PITFALLS

Aisling Byrne, Associate Cleaver Fulton Rankin Limited

© Cleaver Fulton Rankin Limited 2013 Thursday 9th May 2013



Thursday 9th May 2013




Summary   Overview   Employee use and areas of risk for employer

  Reputa�onal damage   Breach of confiden�ality   Harassment   Defama�on

  Employer use and main areas of risk   Discrimina�on   Breach of data protec�on legisla�on

  Tips for minimising risks for employers




Overview




Overview

  Facebook: Over 1 billion users   People spend over 700 billion mins per month on Facebook   Facebook 2012 revenue: $5.09 billion   Twi�er: Over 500 million users   LinkedIn: Over 200 million users   GREAT for developing business and contacts BUT inappropriate use can be dangerous

“DON’T SAY anything online that you wouldn’t want plastered on a billboard with your face on it” Chris Pirillo




Employee Use of Social Media Reputa�onal Damage -‐ US VP of Ketchum tweeted this message before his presenta�on in Memphis to Fedex, one of its biggest clients




Employee Use of Social Media

Reputa�onal Damage -‐ UK Preece v JD Wetherspoons plc 2010 Tribunal held Wetherspoons dismissal was reasonable. Preece posted inappropriate comments about two customers on Facebook whilst at work. Wetherspoons disciplinary procedure listed examples of gross misconduct which included acts commi�ed outside work which brought the Company into disrepute.





Reputa�onal Damage – UK Crisp v Apple November 2011 UK Tribunal held Apple’s dismissal of retail store employee was reasonable. Crisp posted derogatory comments about Apple on Facebook. Regarding an Apple app “MobileMe f***ed up my �mezone……. Wake me up at 3am? JOY!!” “Once again, f**k you very much work” Tribunal focused on Apple’s Social Media policy -‐ prohibited commentary on Apple products or cri�cal comments about the brand. Held no expecta�on of privacy even though Crisp’s Facebook could only be viewed by friends – no control over copying and passing on.





Discrimina�on/Harassment Employers may be vicariously liable for the ac�ons of employees.

Harassment/discrimina�on can be on prohibited grounds such as: age, sex, disability, race, sexual orienta�on, religious belief or poli�cal opinion

Defence -‐   “reasonably prac�cable steps” to prevent the discrimina�on/harassment.

  employee not ac�ng “in the course of employment” if pos�ng outside the workplace (construed narrowly)





Discrimina�on/Harassment Teggart v Teletech UK Limited (reported April 2012) NI Tribunal finds dismissal fair and reasonable. Comments on Facebook were:-‐ “Quick ques�on who in Teletech has A not tried to F**K? She does get around!” A asked the Claimant’s girlfriend to ask him to remove the messages and his response was:-‐

“A can go and f**k donkey d**k……. LOL”




Employee Use of Social Media Discrimina�on/Harassment

Teggart v Teletech UK Limited (reported April 2012) No evidence produced by the Company to show the Company was brought into disrepute BUT harassment of a colleague sufficiently serious to jus�fy dismissal for gross misconduct. Held -‐ right to privacy (Ar�cle 8 of ECHR) was abandoned by Teggart when he

put the comments on Facebook. -‐ right to freedom expression (Ar�cle 10 ECHR) must be exercised responsibly, hadn’t happened in this case.





Discrimina�on /Harassment Young v Argos Limited 2011 Argos Social Media Policy prohibited offensive comments amoun�ng to harassment. Young “liked” comment by an ex employee on Facebook saying an Argos manager “was as much use as a chocolate teapot”. Young said was worst year of her 15 years with the Company. Tribunal held dismissal unfair   comments not serious enough to amount to bullying and harassment,   no more than workplace gossip or rou�ne cri�cism of an employer.





Breach of Confiden�ality Employee's disclosure or misuse of confiden�al informa�on or intellectual property online could:

-‐breach confiden�ality between employer and clients; -‐create embarrassment among employees or clients;

Who has ownership of an employee’s LinkedIn Account?

Hays Specialist Recruitment –v-‐ Ions (2008) Transfer of business contacts to LinkedIn account could be a breach of an employee’s du�es of confiden�ality. Court ordered pre-‐ac�on disclosure.




Employee Use of Social Media Breach of Confiden�ality

Stephens –v-‐ Halfords PLC 2010 Dismissal held to be unfair. Stephens set up Facebook page “Halfords workers against working weekends”. Dismissal not within band of reasonable responses   Stephens clear disciplinary record   Stephens apologised and took site down immediately   Stephens had been absent on work related stress




Employee Use of Social Media Breach of Confiden�ality

Whitham –v-‐ Ventura 2011 Whitham dismissed for Facebook comments: “I think I work in a nursery and I do not mean working with plants” and then later “Don’t worry, takes a lot for the b....... to grind me down” Tribunal held dismissal unfair:   comments rela�vely minor   no evidence comments could have damaged rela�onship with Volkswagen




Employee Use of Social Media Defama�on What is defamatory?   derogatory and untrue comments that undermine the employer’s reputa�on in the eyes of right thinking members of society.

Who can be liable?   Employers can be vicariously liable for defamatory statement of employee during the course of their employment about a compe�tor or client.

Clay Corpora�on –v-‐ Co�er 2013 US $700,000 pre judgment a�achment order against brothers of ex-‐employee for Facebook campaign. Miss Universe –v-‐ Monin $5 million arbitra�on award against Miss Universe contestant who posted comments saying compe��on was rigged




Employer’s Use of Social Media

Recruitment Jobvite 2012 Social Recruitment Survey -‐ 92 % of U.S. companies have used social media networks in 2012 to recruit. Can a prospec�ve employer use informa�on from social media networks? Paris Brown What are the legal risks?

  discrimina�on claims   Breach of data protec�on legisla�on




Employer’s Use of Social Media

Breach of Data Protec�on Act

Data Protec�on Act 1998 (“DPA”) regulates the processing of personal data. Employment Prac�ces Code (“the Code”) includes detailed guidance on employers’ compliance.

Monitoring employees must be consistent with the DPA and the Code. Adverse impact on workers must be jus�fied by benefits to employer.




Tips to minimise risk 1.  Introduce a Social Media Policy   Policy should be co-‐ordinated with other policies such as email, internet and electronic media usage and disciplinary policies.

  Determine scope of the Policy   Address whether employees can use company equipment to access social media sites and if so when

  Emphasize that personal use of social media should not interfere with work

  Iden�fy informa�on that should not be disclosed   Reserve the right of the employer to monitor employee’s social media ac�vity while at work or while using company electronic property;

  Prohibit discrimina�on, bullying and harassment and defamatory comments.




Tips to minimise risk 2.  Training

Ensure that employees tasked with overseeing the Social Media Policy are trained.

3.  Enforcement Apply rules consistently. Act REASONABLY.

4.  Review Review policies and procedures regularly.




Happy to help with any queries. Aisling Byrne Cleaver Fulton Rankin Solicitors [email protected] Tel: 02890271360

© Cleaver Fulton Rankin Limited 2013

social media - employment law pitfalls

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