Social media in the workplace – top 5 issues for 2013

Summary

• Social media’s impact in the workplace continued to grow in 2012, with several high-profile incidents underscoring the challenges facing employers in this rapidly evolving space.
• In this article, we look at the top five social media workplace issues to watch out for in 2013¹.

iPhones + iPads = your risk

That smartphones, tablets and other portable devices are now firmly embedded in our personal lives is nothing new. The growing acceptance of these personal devices in the professional sphere (reflected in increasing levels of remote working practices and integration with company IT systems) means an added layer of exposure for employers.
For managers and HR professionals, this presents a timely opportunity to revisit potentially out-dated social media and IT policies to minimise the risk of confidential information being lost, stolen or inadvertently shared.
Employers should ensure that HR and IT are aligned in their understanding of current employee use of personal and work issued portable devices, and how that use compares with the employer’s preferred policy position. Because of the high risk of damage to a business from such activity, employers should ensure they articulate their expectations to employees.

Contact list disputes – the next big issue

The question of contact list ownership is a largely unexplored issue that promises to develop during 2013 and beyond. While Australia is yet to see significant litigation on this issue, recent developments in the United States provide some heartening guidance to employers.²
Tellingly, employers in the United States have succeeded in restraining ex-employee use of social media accounts where their contracts and policies expressly entertained the issue.³ Employers with significant potential exposure to lost contact lists should consider such proactive approaches.

An emerging tool in industrial relations

2012 saw further examples of unions and action groups using social media in an increasingly sophisticated fashion during bargaining and industrial action.
Whether used to generate grassroots public support for industrial campaigns, to galvanise support amongst employees to vote down proposed agreements, or to communicate planned industrial action and picketing, social media is becoming another valuable tool for unions to mobilise resources, promote their cause and bring pressure to bear on employers.
Employers facing bargaining in 2013 should consider factoring social media into their broader bargaining, employee communications and legal strategies.

Get it right early – preserving evidence in investigations

Investigations into misuse of social media or other IT systems present an array of challenges⁴ to HR and IT professionals alike. Despite these challenges, recent ‘war stories’ from investigations deliver a common message – the crucial importance of taking steps early to preserve data integrity.
Depending on the nature and severity of the conduct in question, these steps may include engaging a forensic investigator to conduct the investigation process. Even in minor cases, employers can minimise the risk of compromising potential evidence by obtaining preliminary forensic advice to guide managers and IT professionals through their own investigation.

Linfox heads to the Federal Court

The Fair Work Commission Full Bench decision in Linfox Australia Pty Ltd v Stutsel⁵ provided a limited framework for assessing the severity of social media misuse, and potentially raised the bar for employers seeking to terminate an employee in this context.
Linfox has appealed the decision to the Federal Court, with the matter listed for directions on 6 February 2013. Although these cases are highly fact-specific, a decision which analyses social media misuse in the unfair dismissal context will hopefully guide employers in managing future cases of social media misuse.

This article was written by Kate Jenkins, Partner, Sara Summerbell, Senior Associate and Andrew Pollock, Solicitor, Melbourne.
Sourced from
http://www.herbertsmithfreehills.com/insights/legal-briefings/social-media-in-the-workplace-top-5-issues-for-2013

Endnotes

1. For Herbert Smith Freehills articles from 2012 on social media in the workplace, please see:
   • Employer’s lack of social media policy results in reinstatement
   • Managing the risks of ‘professional’ social media use by employees
   • Developing trends in social media in the workplace
   • Anti-social media: Linfox Full Bench sets a framework for assessing misuse
2. Pre-trial rulings in Phonedog, LLC v Kravitz (which since settled prior to trial), Christou v Beatport, LLC and Eagle v Morgan have indicated some degree of judicial sympathy for employers attempting to protect their client lists.
3. For example, in Ardis Health, LLC v. Nankivell, the employee agreed in writing with the employer upon commencement that the employer owned the social media accounts maintained by the employee during the employment. Following termination, the employer successfully sought a preliminary injunction to obtain access to those accounts pursuant to that agreement.
4. Herbert Smith Freehills article, Developing trends in social media in the workplace.
5. Herbert Smith Freehills article, Anti-social media: Linfox Full Bench sets a framework for assessing misuse [2012] FWAFB 7097.