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LEGALLY SPEAKING: How businesses can implement a social media policy

Facebook, Twitter, e-mails, blogs, YouTube, Linked-In and Skype - words that we are all familiar with as they permeate our day-to-day lives. Although most social media started out as a recreational concept, its growth and impact is unprecedented in the commercial realm as well. Many companies now use social media as an opportunity to market themselves in the public domain, while also sharing knowledge and information almost instantaneously. Today, I will look briefly at how social media affects the relationship and boundaries between employees and employers, and how businesses may approach implementing a social media policy. Even if banned from using social media on the job, disciplinary matters can arise by comments made by employees outside of work. The classic example is an employee tweeting after a hard day's work 'I hate my boss, he is a jerk' etc. and this comment being read across the globe in seconds. However, the disciplinary result likely would have been the same if an employee stood outside their office with a megaphone and made the same comment about their boss, even before social media. Where social media becomes complex is that it facilitates an individual's private and political views becoming public and permanent. In the past, a group of friends would sit in a bar and discuss the world, now they e-mail about it, or put their thoughts on Facebook. The question is, when an employee makes potentially offensive private or political comments on social media, which aren't directly or obviously linked to their employer, can the employer discipline that employee? An interesting case that came before the UK Employment Tribunal in 2009 looked at this 'grey area'. One day after work, a drugs welfare worker ('G') sent an e-mail from his home computer to a friend that relayed sexist and racist views. Given that the e-mail stated at the bottom 'it is your duty to pass this on', the friend happily did so. Unfortunately for G, the e-mail chain expanded, arriving to the inbox of a prison services department, who promptly complained to G's employer, a welfare organisation. G was dismissed for gross misconduct. G brought a claim for unfair dismissal, arguing that his e-mail had nothing to do with his employer as it was sent to a friend from his home e-mail. G had a 'right' to express his views. The Tribunal thought otherwise and concluded this was a fair dismissal. The reasons were that G worked for a welfare organisation that supported vulnerable people, including women and ethnic minority communities. It was reasonable for his employer to conclude that G's sending of such an e-mail could give an impression that they had/would accept such conduct in their company. G's views were clearly incompatible with his job. Now, if G had worked for a tire manufacturer, for example, this may have led to a different decision on the facts of the case. Another interesting case involved YouTube. Some employees posted a video of colleagues fighting with plastic bags at work. The employees in question were dismissed on the basis that the conduct posted on YouTube brought the company's business into disrepute. The Tribunal disagreed, finding that there was no clear association with the company in the video, which had only been watched eight times. As such, the dismissals were unfair. I am sure many of you would have different opinions as to what the correct course of action would be in the above sets of circumstances. As a general rule, in Bermuda an employee can make whatever private comments they like as long as they are not linked to their employer unless those comments could potentially impact on the employee's ability to do their job. This is a simple and imprecise way of explaining a complex issue, as each case will always depend on the facts. A company can reduce its risk in this area by adopting clear social media policies and treating social media misconduct in exactly the same way as any other misconduct. A clear policy for all is crucial, as inevitably different generations have varying views of social media and apply different sets of digital etiquette to what can be said in e-mails, text messages, Facebook postings etc. A social media policy might include the following points: · A declaration that the company regards comments made on a social media site as public. · Clear instructions that employees should ensure that any personal views they express should never be attributed to the company; should there be any doubt, employees should apply appropriate wording to disclaim the company's involvement. · Guidelines for using social media in the business context. · Confirmation that the company will monitor use of its IT systems and all social media to ensure the policy is being adhered to (including Blackberries etc). · A statement that bullying and harassment over social media will be treated just as severely as any other workplace bullying, even if it occurs outside of the workplace. · A clear warning that breach of the policy may lead to disciplinary action up to and including dismissal for gross misconduct. It is important to create a sense of consistency. A company will need to create a workplace culture as to how it deals with social media without overly interfering with an employee's right to privacy and freedom of expression. We all have to be careful with social media. It is an extremely useful tool and in many ways has transformed both our business and personal lives. However, this tool must be managed in the employment context, and the best way to ensure both protection of company reputation and consistency is to implement and apply a social media policy.

Attorney Michael Hanson is an Associate and member of the Employment and Immigration team within the Litigation & Insolvency Group at Appleby (Bermuda) Limited. A copy of Mr. Hanson's column can be obtained on the Appleby website at www.applebyglobal.com. This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.