European Employment
Lawyers Association
Conference
Social Media in the
Workplace – the
challenges and
opportunities
4-6 June 2015
Limassol, Cyprus
Introduction - Panellists
Mary Brassil
McCann FitzGerald
mary.brassil@mccannfitzgerald.ie
Philip Nabben
Bronsgeest Deur Advocaten
p.nabben@bd-advocaten.nl
James Froud
Bird & Bird
james.froud@twobirds.com
Ariane Claverie
Castegnaro
ariane.claverie@castegnaro.lu
The Rise of Social Media
1.44 billion MAUs*
2.2 billion profiles
300 million MAUs
500 million tweets/day
300 million MAUs
350 million MAUs
200 countries
800 million MAUs
Qzone - 639 million MAUs in China
*MAU = Monthly Active Users
Overview
• Social media is different from traditional forms of
media
– Instantaneous
– Global audience
• Organisations wish to maximise the opportunities
social networks provide
• Need to address the risks
– Cyberslacking - productivity
– Misuse of social media
Scenario
• Advising XYZ plc, a large multinational company,
who want to understand the risks posed by the
use of social media in the workplace in the context
of developing a Social Media Policy for its global
business
Questions
• Can an employer use social media to screen candidates
as part of the recruitment process?
• Can an employer monitor employees’ social media
activity?
• When does an employee’s use of social media become
an abuse of the working relationship?
• Is an employee’s private on-line conduct actionable?
• How does an employer protect its business and its
reputation?
• Who owns LinkedIn contacts?
Examples of Social Media
Vetting by Employers
Social Media Vetting as part of
Recruitment Process
• Roughly 50% of employers review a candidate’s social
media presence, slowly becoming a standard operating
procedure (most reviewed sources: LinkedIn, Facebook,
Twitter, Instagram, Google+)
• Employers are mostly:
– Looking for information supporting their choice for
the candidate
– Checking if the candidate has a professional
image/reputation
– Checking what other people say about the candidate
– Looking for reasons for not hiring the candidate
Is it Allowed to Vet Social Media
(as part of the recruitment
process or otherwise)?
• Given the newness of social media, the legal landscape
in most European countries is still almost bare of any
guidance specific to social media
• However, existing laws concerning privacy and data
protection give meaningful guidance on how to lawfully
collect, monitor and use job applicants’ and employees’
social media content
• Sometimes big differences between countries (US versus
EU countries), sometimes only small nuances
Best Practice (1)
• Provide notice and/or obtain consent before collecting
and using social media information in the background
checking process
• Beware that the restrictions to the use of certain
categories of information for employment purposes (e.g.
race or ethnic origin, disability etc.) also apply to
information collected through social media
• Potential liability for bypassing user-created restrictions
on access to social media content, especially in case of
false pretences or coercion to gain such access
Best Practice (2)
• Information posted on publicly available social media sites:
(almost) no protection under privacy laws
• Employers generally have significant latitude to take
disciplinary action based on an employee’s social media
activity using the employer’s electronic resources during
work hours, provided that the employer has implemented
a legally compliant electronic monitoring policy
• Be careful about taking adverse employment action based
on an employee’s off-duty social media activity using
personal electronic resources
US Practice vs. European
Practice
• US: no expectation of privacy in the workplace
vs.
• Article 8 ECHR: an individual’s general right of privacy
extends to the workplace
• How about:
– Asking/demanding social media passwords from job
applicants and employees?
– HR department representatives trying to become a
‘friend’ of the candidate/employee on Facebook?
Other
Considerations/Observations
• Works Council rights?
• Tendency not to overestimate information obtained
through social media (screening focusing mainly on
professional qualities)
• Legislation regarding social media vetting?
• Codes of conduct, e.g.:
– Netherlands: ‘NVP Sollicitatiecode’;
– UK: ‘UK Employment Practices Data Protection Code’
Finally
“Twittering at work is not that bad”
Monitoring of Employee’s Use
of Social Media
• Why monitoring?
• How to monitor?
– Do
– Don’t
• Steps with:
– DP Authorities,
– Employee’s representatives,
– Employees
Inappropriate Use of Social Media
by Employees
• Legislative background
– Right to privacy (Art. 8)
– Freedom of expression (Art. 10)
– Local statutory employment protection
• Case law
– Reputational damage
– Conduct and policy breach
– Vicarious liability
Is there Privacy
on Social Networks?
• (In)Compatibility?
– Privacy = Intimate, Private Info/Behavior
– Social Network = Open system of Creation
and Content Sharing
• Privacy v
Lawful Evidence
Freedom of Expression
• European Convention on Human Rights (Article
10): but big exception
• Smith –v- Trafford Housing Trust (UK case)
– Religious views about gay marriage ("an equality too
far") posted on Facebook
– Disciplinary proceedings resulted in demotion and
pay reduction
– Smith won breach of contract claim, but Pyrrhic
victory
Reputation Concerns and Client
Relationships…
Preece –v- JD Wetherspoon
-
-
Preece dismissed for
lowering reputation;
-
Unfair dismissal claim
rejected;
-
Employer had policy &
24/7 employee
"hotline";
-
Article 10 exemption
applied
• Facebook dismissals - unfair
– Whitham –v- Club 24 Ltd t/a Ventura
• "I think I work in a nursery"
– Young –v- Argos
• "Chocolate teapot" comment 'liked'
• YouTube dismissal - unfair
– Taylor –v- Somerfield Stores (Scotland case)
• Video clip of plastic bag 'assault'
• Twitter dismissals
– Game Retail –v- Laws
– Keith Mason –v Huddersfield Giants
Conduct and Policies
The Policy Imperative
• Crisp –v- Apple Retail (UK) Ltd
– Unhappy employee dismissed for FB posts:
"Once again fuck you very much work"
"MobileMe fucked up my timezone…"
– Tribunal concluded fair dismissal:
• No reasonable expectation of privacy
• Limitation on freedom of expression justified
• Importance attached to corporate image
• Extensive induction & training were critical
factors
• Access to policies and the Apple "Credo" highly
relevant
Employer’s Liability
• Vicarious liability of employer
– Bullying / Harassment between colleagues
– Intellectual property, copyrights
• Do Social Networks change something?
– Evidence?
– Rules of responsibility?
– ...
Social Media – who owns it?
• Contacts and connections are a key
asset for many businesses
• Who owns the social media account?
– Corporate /personal accounts
• LinkedIn
– Largest professional network
– Invite connections
– LinkedIn User Agreement
LinkedIn
• What proprietary rights exist in a
user’s connections?
– Database rights
– Confidentiality
• Case law
• Hays Specialist Recruitment v Ions
(2008, UK case)
– Ex-employee alleged to have
uploaded client details from
employer’s database to his
LinkedIn account before
leaving to set up competing
business
Case Law
• Whitmar Publications v Gamage
& Ors. (2013, UK case)
– Unlawful use of employer’s
LinkedIn groups
– Accounts maintained as part
of employment duties
• Eagle v Edcomm (2013, US case)
– Departing executive locked
out of her LinkedIn account
– No clear ownership policies
Case Law
• Nautech Services v CSS (2014,
Royal Court of Jersey)
– Ex-employee transferred
confidential information from
employer’s database to
personal email address
– Copyright and confidentiality
protection did not extend to
the ex-employee’s LinkedIn
account
– Court cited LinkedIn User
Agreement
Practical Steps for Employers
• Implement Social Media Policy
and LinkedIn Policy
• Statement of ownership
• Retain login and passwords
• Replicate contacts on
employer’s database
• Contract provision assigning to
employer any proprietary
interest in contacts
Social Media Policies
Social Media Policies
Purposes
• Is it necessary?
– Social Media and Working Time
– Freedom of Expression v. Reputational
Damage
– BYOD,
– Remote Working,
– Disciplinary Procedures,
– ...
• Cultural & Legal Challenges
SOCIAL MEDIA POLICIES
Key Features
•
•
•
•
•
Right to be informed
Terms of use (professional vs. private)
Authorized / forbidden use
Controls
Disciplinary actions
X
SOCIAL MEDIA POLICIES
Best Practice Guidance
• Transparency, loyalty, proportionality
• Training
• Integration of references to social media use in
other policies (IT, BYOD, remote working,
bullying & harassment, discrimination)