Notification nightmares: Social media missteps for employers to avoid

The advent of social media has transformed how we live, connect, and do business. Employers can now use social media to advertise, recruit and communicate with employees, and engage directly with customers. But it has not come without complications for employers: harassment or bullying can now happen online, and as technology innovates, there are new and unexpected ways for employees to fall afoul of their employment obligations such as we’ve previously discussed in relation to the app, TikTok.

While there is often discussion about the importance of managing employee use of social media, there is little consideration of the risks and pitfalls that can arise from employer use. It’s important for employers to be aware of the wide range of unintended consequences for their businesses that can arise from their actions on social media.

 

Adding/friending employees on social media

As social media has become ubiquitous, exchanging contact details with someone will often mean the details exchanged are both parties’ social media profiles – with this being a preferred method of communication for many.

One of the benefits of connecting with employees on social media is that it can create a higher sense of familiarity and closeness between you and your employees. While some employers may love the sound of this, you should think twice before sending off a friend request to your latest hire.

Employees may take this familiarity to mean that they can contact you at all hours. It also means that suddenly all of your past, present, and future activity online is visible to your employees. This may make it harder to set expectations and may see employees pushing boundaries.

The situation can be further complicated where an employer seeks to disconnect or unfriend an employee on social media, with the Fair Work Commission even finding in Roberts v Bird & Anor [2015] FWC 6556 that ‘unfriending’ on Facebook could amount to ‘unreasonable behaviour’ and supported an order to stop bullying.

Generally, employers should avoid connecting with employees via their personal social media accounts where possible. If for whatever reason you feel a need to connect with them, you might like to create a dedicated work profile for use with employees that is separate to your personal account.

 

Using social media for employee communication

Part of the appeal of integrating social media into a business is the way these platforms can make the running and organisation of the business easier and more stream-lined. The most common example of this would be creating a group chat or group page for discussion and communication about a range of work-related matters, such as rosters, daily reports, and meeting scheduling.

Potential for private work-related communications to go public

There are two crucial concepts to remember about anything you post to the internet:

1. once it’s online, it’s there forever; and
2. nothing is private on the internet.

These concepts are important to understand because the immediacy of social media means that employers may not take the time to reflect on them and review their communications to employees. This lack of careful review and reflection can result in employers acting in way that can impact morale or upset their workforce.

However, it doesn’t end there. Once the post is online, it’s there forever and can be distributed to the wider public.  Before you know it, employers can quickly find themselves the target of a social media ‘pile-on’ or ‘cancelling’ for comments or posts made in a work-related Facebook group.

Let’s consider a hypothetical:

Sonya runs a dress shop, Sonya’s Frocks, with a large number of casual high school students forming part of the workforce. Many of her employees are still learning how to act and communicate professionally, and this can result in employees not checking their rosters, pulling out of shifts at the last minute, and swapping shifts without telling Sonya.

This has caused Sonya a lot of frustration, as it makes it hard for her to ensure her store is properly staffed. This prompts her to make a post in the Sonya’s Frocks Facebook Group stating:

“Once I publish the roster for the week, it’s final. I won’t accept shift swaps without my approval, or last-minute cancellations. No excuses.”

An employee comments and asks what they should do if they are sick and cannot attend. Sonya responds and says:

“Unless you provide me with a medical certificate, you will be dismissed.”

Unfortunately, Sonya’s comments get ‘screen-shotted’ and shared online by some prominent social media pages. This then leads to some local newspapers publishing articles about the posts, sharing them further.

People online start calling for a boycott of Sonya’s Frocks, and they even identify that Sonya’s post and comment misrepresent her employees’ rights under the Fair Work Act 2009 (Cth). One of Sonya’s employees is then encouraged to bring a claim against her for coercion and misrepresentation. A simple comment on a Facebook post can quickly escalate into a much bigger affair and result in legal proceedings, and serious reputational risks. These situations can have a major impact on your bottom line, as ethical considerations increasingly shape customers’ views and spending habits.

A good rule of thumb for anyone when engaging on social media is to stop and think before you post something. Consider whether you would still make that post if it could end up in the media, and if you wouldn’t, you probably shouldn’t post it.

For some businesses, additional control measures might include asking someone else of equal or higher authority to double-check any proposed social media post before publication to minimise the risk of adverse consequences.

Greater ease of the spread of grievances and complaints

While many employers enjoy the ease with which they can communicate with their employees en masse on these groups, they can often forget that it can also allow employees to communicate with other employees in a similar fashion. Sensitive employee complaints and grievances can quickly be publicised via social media groups to the workforce at large, and small individual complaints can blow out into larger collective matters.

These risks were noted by the Fair Work Commission in the recent decision of Ms Leonie McCreedy v Village Roadshow Theme Parks Pty Ltd [2020] FWC 2480. In this matter, the employer exercised their right to request employees take annual leave under the recent JobKeeper amendments. Unfortunately, an employee became aggrieved by this request and sought to reject it, resulting in escalation to the Fair Work Commission.

Relevantly, the aggrieved employee also posted about this matter in a company-managed Facebook group, to which “the majority of employees expressed concern, angst and disgust at [the employer]”. In particular, the Commission noted at [29]:

“It is available to [the employer] to decide for how long it needs to make requests of eligible employees in light of the stinging criticism I have been privy to on its closed employee Facebook page… The damage to the relationship with some of its employees opposed to [the employer]’s request to relevant employees is for [the employer] to consider and manage.”

Employers should heed these comments from the Commission and have strategies to avoid or manage grievances or complaints from appearing in one of these groups, lest they find themselves dealing with a can of worms they weren’t ready for. Understand the settings of the platform, and consider changing the group settings to restrict employee activity, for example, by requiring you to approve all posts before they are published.

 

Adding and removing staff from groups

Finally, adding and removing members to a group is an inherent part of social media groups. While this sounds obvious, there are a number of issues that can arise from administering these functions.

Some employees may choose not to use social media platforms for a variety of reasons. As a result, where the group is an integral part of the everyday running of the business, you will either have to develop strategies to ensure this person is kept up to date.

On the other hand, employers will also have the ability to remove employees from the group. This can cause complications however, as removal from a group could be interpreted as an intention to dismiss an employee.

For example, in the case of Harston v Sandringham Hotel [2019] FWC 41, an employer tried to argue that a casual employee had voluntarily resigned to work elsewhere. However, the Commission found the employee had never resigned, and in fact the employer had actually dismissed the employee. In deciding this, the Commission relied on the employer’s decision to stop offering shifts, and removing her from an employer-managed Facebook group, resulting in her being unable to swap shifts. It was decided that the date of dismissal was the date of her removal from the group.

Employers should note that where they come to rely on these social media groups as part of their business, the way these groups are managed can have wide-reaching consequences. Make sure you have clear protocols about how and when someone is added or removed from these groups, for example, you could make changes to require your approval before someone is added or removed.

 

Should I use social media to manage employees?

While social media can offer employers a number of efficiencies and benefits in the day-to-day operation of their business, caution still needs to be exercised in how they use and integrate these systems and apps into the business. Unfortunately, many of the features that make social media so attractive to use in the business can just as easily lead to the pitfalls seen above.

However, if you do want to integrate social media into your business, bear in mind the possible risks that may arise and develop plans as to how those risks can be avoided or managed. Some key takeaways include:

• Set clear expectations about how you and your employees should engage and interact with other employees online.
• Think twice before posting something online: once it’s online it’s in the public domain forever.
• Make sure you understand the platform you’re using, and consider putting restrictions in place to prevent undesirable employee activity on the platform.

If you are looking for further guidance around how to manage social media and your employees, contact NRA Legal for advice.