Are Your Employees Sabotaging You on Social Media? Wednesday, 27 September 2017

In the studio today: Joe Murphy Director Australian Business Lawyers & Advisors

Agenda Social Media and Business Forms of Sabotage The Risks Prevention Clean up

Social Media and Business

Social media What is social media and who is using it? How does it impact your business?

Stats: Social media in the workplace The 2016 WorkplaceInfo Social Media Index found: 43% of employers monitor employee usage of social media Only 40% of employers have social media policies

Explosion of devices

The new reality for employers + = Explosion in Social Media Explosion in mobile devices Great Opportunities and Great Risks

Forms of Sabotage – Part 1 Intentionally inappropriate postings (the ‘disgruntled employee’) Well-intentioned but inappropriate postings (including ‘off-brand’ employee advocacy, misleading and deceptive conduct) Employee complaints about the Company Release of confidential or sensitive information

Forms of Sabotage – Part 2 Theft or dissemination of company contacts ‘Identity theft’: ex-employees posing as the Company Conduct which compromises online security.

The Risks Reputational: “It’s gone viral” Release of confidential or sensitive information including theft or dissemination of company contacts Exposure to malware Employee culture

Prevention: What can we do? Social Media Policy Workplace Surveillance Policy Employee Contracts Monitoring Training / awareness activities Security measures

Social Media Policy What is the company’s relationship with social media? What are the objectives? What is social media? Who owns what? Ground rules for what employees can say as individuals?  

Social Media Policy Who speaks on behalf of the Company Ground rules for sensitive topics Company expectations for ‘likes’ and ‘shares’ Departing employees? Training

Workplace Surveillance Requirement for Policy; Creation of system e.g. Alerts etc.

Employee Responsibilities Obligations under Employment contracts: express contractual obligations e.g. compliance with policies; and relevant implied duties.

Confidentiality obligations Implied Contractual duty of Fidelity Equitable Duty of Confidence Express Contractual Confidentiality Obligations Corporations Act

Ownership of IP in an employment context General rule: IP is owned by employer where it is created in the course of employment That presumption can be displaced by agreement to the contrary (e.g. Universities) Rights can be clarified in employment contract

An emerging area: who owns social media contacts? Ownership of social medial accounts on LinkedIn, Twitter, Instagram will depend on who the account is established under Ownership of contact lists derived from sites is more complicated: Why was the account set up? When was it set up – work time or personal time? Are personal or work emails used as the contact details?

Security measures during employment Workplace surveillance practices must comply with relevant State/Territory surveillance legislation Document security protocols (restricting access) Must take all reasonable steps to keep Confidential Info confidential – once in public domain difficult to enforce confidentiality obligations

Cleaning Up after Sabotage Brand rehabilitation Client engagement Legal action against employees

Cases Fitzgerald v Dianne Smith t/as Escape Hair Design [2010] FWA 7358 Starr v Department of Human Services [2016] FWC 1460 McIntyre v Special Broadcasting Services Corporation T/A SBS Corporation [2015] FWC 6768

visit www.hradvance.com.au Need more information? visit www.hradvance.com.au Social Media Policy template: https://hradvance.com.au/vault/global/policies/social-media-policy

Thank you!