european employment lawyers association conference social media in the workplace – the challenges...
TRANSCRIPT
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European Employment Lawyers Association Conference
Social Media in the Workplace – the challenges and opportunities
4-6 June 2015Limassol, Cyprus
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Introduction - Panellists
Mary Brassil McCann [email protected]
James Froud Bird & [email protected]
Ariane ClaverieCastegnaro [email protected]
Philip Nabben Bronsgeest Deur Advocaten [email protected]
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The Rise of Social Media
1.44 billion MAUs*
300 million MAUs500 million tweets/day
350 million MAUs 200 countries
Qzone - 639 million MAUs in China
*MAU = Monthly Active Users
2.2 billion profiles
300 million MAUs
800 million MAUs
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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
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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
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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?
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Examples of Social Media Vetting by Employers
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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
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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
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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
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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
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US Practice vs. European Practice
• US: no expectation of privacy in the workplacevs.
• 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?
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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’
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Finally
“Twittering at work is not that bad”
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Monitoring of Employee’s Use of Social Media
• Why monitoring?• How to monitor?– Do– Don’t
• Steps with:– DP Authorities, – Employee’s representatives, – Employees
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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
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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
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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
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Reputation Concerns and Client Relationships…
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Preece –v- JD Wetherspoon
- - Preece dismissed for lowering reputation;
- Unfair dismissal claim rejected;
- Employer had policy & 24/7 employee "hotline";
- Article 10 exemption applied
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• 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
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Conduct and Policies
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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
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Employer’s Liability
• Vicarious liability of employer
– Bullying / Harassment between colleagues– Intellectual property, copyrights
• Do Social Networks change something?
– Evidence?– Rules of responsibility?– ...
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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
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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
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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
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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
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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
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Social Media Policies
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Social Media PoliciesPurposes
• Is it necessary?– Social Media and Working Time– Freedom of Expression v. Reputational
Damage– BYOD,– Remote Working,– Disciplinary Procedures,– ...
• Cultural & Legal Challenges
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SOCIAL MEDIA POLICIESKey Features
• Right to be informed• Terms of use (professional vs. private)• Authorized / forbidden use• Controls• Disciplinary actions
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X
SOCIAL MEDIA POLICIESBest Practice Guidance
• Transparency, loyalty, proportionality• Training• Integration of references to social media use in
other policies (IT, BYOD, remote working, bullying & harassment, discrimination)