New Social Networking Laws

[HRLINE]

Hi,

Just read this article on humanresourcesmagazine.com.au:



New laws make social media interaction dangerous for bosses


New workplace legislation has made social media communications between employers and employees more dangerous for employers, according to a leading workplace relations lawyer.

An “adverse action” clause in the new Fair Work Act meant interaction on websites such as Facebook and Twitter between employers and employees could have wider implications, said Allens Arthur Robinson partner and head of the firm’s workplace relations group Adam Lunn.

What may be meant as an innocent comment via social media by an employer to an employee may lead to bosses facing lawsuits for unlimited damages for harassment, bullying or discrimination.

“Employers need to think very carefully before they allow employees to become ‘friends’ on their social networking sites,” Mr Lunn said.

“Allowing employees to openly access your Facebook or MySpace account opens you to defamatory material being placed on there or just the perception your engagement with some employees is more favourable to them than to other employees.

“You could be seen to be discriminating against an employee that you don’t befriend. It is important to remember that the employer-employee relationship doesn’t stop at the office door.”

Under the Fair Work Act’s adverse action clause, workers can sue for unlimited damages over actions that adversely affect their job, injures or discriminates, or threatens such actions.

Lunn said businesses should look to develop a social media policy or review their existing technology and HR policies to outline precisely what is acceptable and unacceptable in regards to the use of social media both during business hours and after hours.


How far can employers go in creating policies for after-hours use of these sites? Do we prevent managers becoming online 'friends' to thier direct employees?

[kevinh]

This isn't the only employment related legal risk associated with the use of social media. You can throw the potential for bullying and harassment into the mix.

Also, employers need to be aware of the dangers in 'googling' job applicants or 'checking people out on the web'. The problem is that in doing so you may find information on social media sites about an individual which colour your judgement about the person, despite the fact that it is likely to relate to their private lives and have nothing to do with their employment. It may even be material that the individual may not be aware exists.

Prying into people's private lives when assessing them for employment is in most cases illegal from both privacy and discrimination perspectives, regardless of how you do it.

Despite this I suspect the practice of checking job applicants out on the web is widespread.

[HRIMHO]

Originally Posted by kevinh

Prying into people's private lives when assessing them for employment is in most cases illegal from both privacy and discrimination perspectives

I don't see how this is illegal if it is publically available information - what privacy have you breached? I agree that you would need to be careful regarding discrimination but there are specific categories of discrimination and if there is publically available info that someone is a boozer etc then I don't see why that can't be used... not saying it should be though.

It's a very interesting article though. There is no doubt that the lines are getting increasingly blurred between work and non-work issues. The 'ole widget factory from the industrial age was easy to seperate, not so much now! I also read a recent FWA decision that upheld the dismissal of an employee who was convicted of drink driving outside of work hours in their private car. The employer (a alcoholic beverage manufacturer) had a policy that advised of the consequences of this out-of-hours behaviour and thus the dismissal was upheld.

Cases like these will really be the only way to distinguish between appropriate and inappropriate policies designed to apply outside of the work context. There will be no black and white!

[kevinh]

Originally Posted by HRIMHO

I don't see how this is illegal if it is publically available information - what privacy have you breached?

You would have collected information (almost certainly unverified) about the individual without their knowledge and consent.

So the person has no ability to respond or redress. You could have even collect information about another person without knowing. How many John Smith's are there on facebook?

For that matter I could create a facebook account in your name in five minutes and put all sorts of damaging comments on your wall. I could post a blurry video of HRIMHO doing something illegal on YouTube, which will soon come up in a Google search for HRIMHO.

Are you starting to get the picture

The Privacy Commissioner in Victoria is quite clear about this. Her view is that an employer must seek the consent of an individual before collecting information about them on the internet. The person must then be shown what information has been collected so that they have the opportunity to respond. At which point you say "hey, that wasn't me in that video!"

[HRIMHO]

Collecting the information and verifying the information are different points entirely, as they are with interview and referee checks.

Privacy Principles as covered under the Privacy Act go so far as to state (maybe not in exact words) that information can only be used for the purpose it was collected. Facebook are the ones that collect the information directly from the individual, not the employer thus this aspect does not apply.

Like I said, collecting the information IMO is not illegal. It's how you use it/verify it/whatever that can bring you unstuck.

[kevinh]

Originally Posted by HRIMHO

Like I said, collecting the information IMO is not illegal. It's how you use it/verify it/whatever that can bring you unstuck.

Okay, I'll retract the word "illegal".

The fact is, in Victoria at least, that the Privacy Commissioner takes dim view of employers gathering information about job applicants from the internet, whether it be facebook, myspace, youtube, etc without the express permission of the individual.

Just like it wouldn't be acceptable to ask a job applicant "who are your friends?", " what do you do at the weekends?", "do you drink too much at parties?".

The problem I see for employers is justifying the gathering of such information from social media sources in the face of a discrimination claim.

Imagine being an interviewer who is asked by a job applicant "have you collected any information about me on the web?"

If you have to answer 'yes' it immediately puts you in a difficult position.

[HRIMHO]

I agree completely. It does not reflect well on a business, its culture etc if one resorts to this kind of dirt digging. I apologise if I was arguing technicalities rather than practicalities, as in essence this kind of snooping is not very transparent, particularly as you've mentioned, if they ask the question!

[IvanaC]

This has been a very interesting discussion and I have a question about collecting info:

can I collect information say from Lindedin about a prospective new manager prior to attending an interview? do I need to seek permission from the individual to view or seek their details, and what about if the information is publicly available.

thanks, Ivana

[kevinh]

Originally Posted by IvanaC

can I collect information say from Lindedin about a prospective new manager prior to attending an interview?

Ivana, I will preface this by saying I am not a lawyer, but I would put LinkedIn in a completely different category to "social media" products such as Facebook, MySpace etc. People don't use LinkedIn to swap personal comments with friends and share photos from the wild party they attended last weekend.

LinkedIn is specifically designed for business networking and recruitment. People effectively put their CV on-line using LinkedIn so the expectation of the user is very different. The information people provide on LinkedIn is directly related to their employment.

So my personal opinion would be yes, it is reasonable to collect information from someones LinkedIn profile before an interview, without their express permission. Some people may be disappointed if you haven't checked them out on LinkedIn, because it is often used as a self promotional tool.

If the information on their LinkedIn profile doesn't tally with what's in their CV I would mention that at interview and give them the opportunity to explain why. Their LinkedIn profile may not be up to date for example.

As usual these are just my personal opinions

[HRIMHO]

Yes, I would say that you can look at that information and use it prior to the interview. I'd suggest however if there is something material in the LinkedIn profile that either enhances or diminishes a candidates claim, in either case seek verification and clarification from the candidate (and other sources as need be).

[HRLINE]

Has anyone put in place a policy on social networking? I am having a look around now for one to put in place.

Can we place a policy that managers should not have employees as 'friends', or is this rather an education process? However, I have also been included on those 'email chains' where employees have been caught out faking sickies due to their facebook updates, would this be creditable evidence?

[HRIMHO]

Originally Posted by HRLINE

However, I have also been included on those 'email chains' where employees have been caught out faking sickies due to their facebook updates, would this be creditable evidence?

I would think you could present that evidence to the employee, ask for an explaination and take it from there. If they've got a good reason then you can put it to bed, if they don't have a good explanation - well then it's up to the underlying policies or Award etc on what actions are available. For example, one thing I do remember is that if an employee wakes up "ill" and are better within an hour then unless you make it explicitly clear to an employee that they are expected to return to work at this point, then they can legitimately go to the shops etc...

I'd probably err on the side of caution though and be more-than-fair to the employee where possible. Sick leave stuff is pretty grey IMO!