A recent civil law suit filed in the US is set to examine how an employer might be liable for an employee’s conduct on social media. The suit alleges the employer is liable for the actions and damage caused by a managing director who used his LinkedIn account for official recruiting purposes but eventually began sending unsolicited and inappropriate (e.g. sexual) messages to a prospective employee.
It is clear the events started out in the course of the director’s employment duties i.e. to recruit an employee. What is not so clear is whether the director ceased to perform his employment duties once the conversation became non-work related.
There is an argument to be made that once the online messages stopped being related to the recruitment process, the employer was no longer responsible for that conduct. However, where this becomes tricky is that he continued the conversation with the prospective employee on his LinkedIn account, naming and linking him with his employer.
In Australia, the Fair Work Commission (FWC) has expressed a view that this type of conduct can be work-related because the person can be identified as an employee of the employer. In Harvey v Egis Road Operation Australia [2015] FWCFB 4034, an environment and safety manager was held to be validly dismissed after he, amongst other things, sent threatening and abusive messages from his personal LinkedIn account which bore his position and his employer’s name.
The lesson to be learnt
In this day and age, more and more businesses are encouraging their employees, as part of their role in the workplace, to have a presence on professional networking sites such as LinkedIn. As these digital footprints continue to expand so too must the definition of “work-related conduct”.
The use of social media can have significant benefits for networking, recruitment and publicity purposes however it needs to be appropriately managed by employers. Employers need to ensure there are policies in place that set expectations for social media use in the workplace and online conduct outside hours that may impact the employer.
To minimise the risk of liability for an employee’s conduct on social media, a similar approach might be taken to implementing anti-bullying and harassment policies in the physical workplace. However, extra care should be exercised to ensure that:
We have previously discussed the ways in which the FWC has considered the relationship between social media and the workplace (see our blog “I’m free to do what I want any old time” – 5 Social Media Behaviours for employers to watch out for”). Management of those behaviours, including the online content shared by employees, is increasingly vital as social media becomes more prevalent in the workplace.
