Regulation of social media in the workplace: balancing risks to employers’ against employees’ autonomy

AoIR Conference-South Korea October 2014Ms Jacinta Buchbach – PhD Candidate

j.buchbach@hdr.qut.edu.au

Overview of the research Objectives

Background

Recruitment Phase

Employment Phase

Post-Employment Phase

Research Question

Methodology

Research so far

Exclusions and Limitations

Questions

Objectives

My research aims to:

Provide a framework for evaluating tensions arising out of social media use in workplace

Provide clear recommendations for law reform and business practice

Improve certainty and safeguard employee legitimate interests and employers mitigation of risk

Background Social media use is adversely impacting the employment

relationship

The pervasive nature of social media is blurring the boundaries of private and public space

Unresolved conflict in the law between employee ‘autonomy’ and business managing their risk

Conflict can arise in any of the three phases of the employment relationship:

A. RecruitmentB. EmploymentC. Post-Employment

Background Employee Tensions Employees consider that their online autonomy is being

infringed by their employer

Employer Tensions• Increased legal liability for employers which can adversely

affect business reputation

No Social Media regulation or industry guidelines

Social media policies regulate employee use

Do they balance competing tensions?

EmploymentPost employment

Regulation of social media in the workplace:balancing risks to employers’

against employees’ autonomy

Emerging issues - Recruitment

• Social Recruitment strategies are outpacing traditional recruiting methods

• United States study found 45% of hiring managers are screening applicants

• Mining of personal data online creating legal problems:

Privacy, ‘cyber-vetting’ and employer ‘friending’ Discrimination of protected attributes disclosed Predictive analytics for person-organisation ‘fit’

During Employment

O’Keefe v The good Guys [2011]

• Salesman threatened payroll manager over pay dispute on FB page

• Employer issue: vicariously liable sexual harassment, breach employee handbook

• Employee issue: Privacy issues as FB page did not identify his employer and comments not intended for her to see. Fellow employees were his friends and saw the post

Salesman

Linfox Australia cases

Linfox v Stutsel [2012]Driver made sexual and racial comments about managers on his FB page• E/er issue: Vicarious

Liability• E/ee issue: Free

speech• Commission: within

right to free speech, though distasteful, not hurtful NO SM POLICY

Pearson v Linfox [2014] Driver committed a whole range of conduct including ‘refused to sign’ to acknowledge training in SM Policy• E/er issue: breach of

contract• E/ee issue: policy sought to

‘constrain’ his actions off work and breach of various individual rights

• Commission: not Commission’s role to determine if policy in breach of individual rights

Little v Credit corporation [2013]

• E/ee anonymously criticised a client on their FB page and made sexual comments about a new e/ee on his FB page

• E/er issue: breach of contract/vicarious liability/misconduct

• E/ee issue: anonymous FB account, but e/ees were friends. ‘Private’ and free speech

• Commission: entitled to an opinion, but not to ‘the world at large’ which reflects badly on employer

FB Profile:Work as: a ‘Dinosaur Wrangler’Employer: ‘Jurassic Park’

Banerji v Bowles [2013]

@LaLegale aka APS Immigration worker Michaela Banerji

@LaLegale tweeted ‘critical’ comments about immigration detention policies• Investigators revealed

B was twitter a/c owner

• APS issue: Code of conduct breach

• B issue: implied constitutional right to express political opinion

• Fed Circuit Crt: right limited, if did exist, no licence to breach contract

• Fed Govt: B left APS and settlement was reached privately

Case EXAMPLES

FIRED

FIRED

FIRED

FIRED

Emerging issues Post-employment

• Post-employment, uncertainty surrounds who controls customer connections made during the course of employment

• Why? Valuable interest in private online branding which clashes with goodwill in business customers

• Unsettled law in United States-proprietary ownership rights in Eagle v Morgan compare United Kingdom which draws upon the law of Agency (Fairstar v Adkins) and confidential information (Whitmar v Gamage)

• In Australia, intangible information is not ‘property’• But employer CONTROL through confidential information and

restraint of trade clauses in contract OR SOCIAL MEDIA POLICY

Common defence raised

AUTONOMY ONLINE

EU proposals erode internet freedomsPublished on : 27 December 2011 - 10:35pm | By Willemien Groot (© Cartoon movement)

Research Question

How should social media in the workplace be regulated to effectively balance competing employee/employer legal interests?

Research Question• Identify the legal risks and emerging tensions arising

out of social media use with regards to the recruitment, employment and post-employment stages

 • Critically analyse the current law and business

practice in managing risk and striking an appropriate balance between competing employee and employer interests

 • Identify potential avenues for reform of Australian law

with regard to developments in the United States and United Kingdom

Methodology Phase one3 Phases of the Research:

The first phase in-depth review and analysis of the legal tensions that exist in the employment relationship with the identification of potential rights of employees and employer risk factors

Methodology Phase two Theoretical research supplemented with findings

from a social media policy audit, will inform a desirable balance to regulate and ease tensions in the employment relationship

The conceptual framework will focus on the economic interests of employers in managing risk and business reputation, on the one hand, and conceptions of autonomy interests of employees on the other

Boundary theory reflects the relationship between an individual, work and technology

Methodology Phase three The third phase will build on the theoretical

framework to identify potential reforms to Australian law and best practice. These will be informed by an analysis of doctrinal developments in other common law jurisdictions (predominantly the United Kingdom and the United States)

Research so far… Phase one

Employee online interests:• Presentation of the self• Anonymity• Privacy and free speech

Employer online interests:• Protect business reputation• Protect other employees against online bullying and

harrassment• Comply with specific guidelines in monitoring their online

brand

Research so far… Phase two

• Sample of social media policies collected online (not representative sample)

• Two themes in policies: Clauses either too restrictive and/or too broad

Too restrictive• Work Disclaimers impact an individual’s presentation of the self and

their freedom of anonymity Too broad• Clauses sanction individuals from negative talk about work which

potentially chills workplace rights (eg right to make complaint about working conditions)

OUTCOME? CONFLICT AND IMPACTS WORK-LIFE BALANCE

Research so far… Phase 2

Appropriate theoretical framework for technology, work and private life exists in Boundary Theory (Nippert-Eng)

• Work-life conflict can be minimised utilising boundaries in creating and maintaining more or less distinct ‘territories of the self’

• Depends upon an individual’s preference for segmentation and integration of work and the permeability and flexibility of these boundaries

• Communicative tactics used to negotiate work flexibility, boundary violations and employer ‘reciprocity’

Research so far… Phase two Figure 1: A healthy approach to technology and its impact on the

home/work domains, work, and people. (diagram adapted from Kristopher Thomas in Workplace Technology and the Creation of Boundaries: The Role of VHRD in a 24/7 Work Environment)

Research so far… Are employers required to ensure social media

policies are fair to the employee?

Doctrinal legal analysis Investigation into implied common law obligations of

employee contracts Two implied obligations• Mutual Trust and Confidence• Good Faith a remedy for employee

Common law obligation for employees to obey lawful directions

Exclusions and Limitations

Analysis of government or public service social media

regulation

Regulatory responses to cybercrime

Big Data and Privacy Regulation

Analysis of external regulatory corporate social media

compliance

Cyber-bullying legislation

‘Property rights’ in social media

Questions????