Social media have changed the way many of us communicate. Through internet sites such as Twitter and Facebook, individuals have the ability to create their own profile, upload and share pictures and files, and send instant messages and email. This has raised issues for employers on how to manage employee use of social media, and how best to use it themselves.

Employers can use social media to gain more information about an applicant than when using traditional hiring practices alone. An applicant’s social media membership may reveal more information than an applicant discloses in an interview. As of 9 December 2009 Facebook altered its privacy policy to make each of the 350 million Facebook users’ names, profile picture, current city, gender and list of friends publicly viewable by other Facebook users.

Employers can use information gleaned from such social media sites to assess an applicant’s drug or alcohol use, work ethic, and writing and communication skills and take these factors into consideration when making a hiring decision.

In the media this week there has been discussion of a new site: www.getunvarnished.com, where users can rate other people’s characteristics such as productivity and integrity, as well as writing reviews on their strengths and weaknesses.

When incorporating the use of social media to screen job applicants in the hiring process, employers should consider the following:

• Applicants should be screened uniformly by creating a list of sites that will be searched and the information to be obtained from each.

• The screening could be conducted by a neutral party such as an employee who is not part of the decision-making process.
• The person doing the screening should not ‘friend’ or make a connection with the applicant in order to access the applicant’s non-public profile.
• Employers must have non-discriminatory and legitimate reasons for their decision about the applicant, with supporting evidence.
• Employers should be aware that social media sites may contain inaccurate or outdated information.
• Use of information from social media should not replace consideration of an applicant’s CV, interview, testing (if any) and reference checks.

Social media can provide for more informal interaction between co-workers and can improve working relationships. Some organisations incorporate an internal social media site to share business information with employees.

However, use of social media by employees can be detrimental to the organisation. A quick search on the terms “Facebook” and “sacked” reveals dozens of employees dismissed for posting insulting remarks about their boss, having forgotten that they had “friended” their boss months earlier, for labelling their work boring, for posting insulting remarks about customers, and one who was sacked through Facebook. One blogger has even made a post called “How to get yourself sacked using Facebook”.

It is clear then that employees can damage an employer’s reputation. It is important that employers establish guidelines for what is acceptable employee use.

Employers should consider adding the following details to internet/email use policies, and/or their code of conduct:

• Identifying grounds for disciplinary action, up to and including termination, as a result of misuse of social media.
• Prohibiting disclosure of employer’s confidential information online.
• Requiring employees not to use company name logo or trademark on their blogs/profiles.
• Requiring any work-related complaints to be addressed at work and not online.
• Prohibiting use of company email address for membership of social media sites.
• Requiring employees to disclose if they regularly post blogs, and any possible or existing conflict of interest arising out of their blog.
• Stating when and under what conditions social media sites may be accessed at work.
• Stating whether the employer monitors employee use of social media sites.
• Reserving discretion to the employer to determine if a social media site is unacceptable.

Employers must ensure that employees are aware of policy changes and have an opportunity to ask any questions they may have. Employment Relations Authority determinations confirm that use of internet or social media contrary to policies may justify disciplinary action. However, outdated policies may make it hard for employers to enforce such action.

Employers should therefore ensure that policies are a living document, not simply gathering dust in a manual on a shelf. This applies to all policies. Employees should be reminded of their obligations from time to time, and any breaches acted upon promptly. It will be more difficult to enforce a policy if custom and practice has been to let issues slide.

This private member’s bill, introduced by Labour MP Darien Fenton in August 2009, has had its first reading in Parliament this week. The bill provides for:

• no less than four weeks’ notice of redundancy;
• compensation of four weeks’ wages for the first full year of service; and
• compensation of two weeks’ wages for each complete year of service thereafter;
• up to a maximum of 26 weeks’ compensation.

If an employment agreement contains a more generous provision, then that provision will prevail.

The bill is not supported by the government. Labour Minister, Kate Wilkinson, said, in response to questions in Parliament by Darien Fenton, that while she sympathises with laid-off workers, she does not consider that further rules and regulations will make it any easier for small business owners to stay in business. It is therefore unlikely that the Bill will become law this term in Parliament. We will follow the bill’s progress and keep you updated.

This newsletter is necessarily of a general nature, and should not be relied upon as a substitute for specific legal advice. Should you wish to discuss anything further, please contact our team:

Mark Beech, Partner DDI: 64 7 928 0775 Email: mark.beech@sharptudhope.co.nz

Shima Grice, Associate DDI: 64 7 928 0764 Email: shima.grice@sharptudhope.co.nz
Amy Scott, Senior Solicitor DDI: 64 7 928 0792 Email: amy.scott@sharptudhope.co.nz