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People have duties of fidelity and loyalty to employers, says lawyer Craig Mundy-Smith.
The rise of the internet and social media has given people the power to express their viewpoints to a mass audience, but sometimes this power can be abused by employees whose online activities damage their employer’s business brand and reputation.
What happens in a situation where an employer discovers a blog written by a disgruntled member of staff who makes destructive or damaging comments about the employer and their business? Is the employer powerless?
Most employees think that outside work hours, they can do as they wish, that the relative anonymity of an internet blog site means they can vent their frustrations with impunity. They are wrong.
Employees have underlying duties of fidelity and loyalty to their employer, and these duties are not suspended just because the employee has gone home for the day.
Employees must not engage in activities that bring their employer into disrepute at any time.
An employee who openly ridicules or disparages their employer in a blog runs the risk of being dismissed for breaching these obligations.
What about freedom of speech? Don’t the employees have a right to express themselves?
Freedom of expression is a right, but this doesn’t shield employees from the fallout arising from their comments.
How can an employer have trust and confidence in someone who denigrates their workplace in an open and public forum? Loyalty is central to the good faith relationship between employer and employee. If employees misuse their right of expression, they must also suffer the consequences of breaching their obligations to their employer.
What is the process that is followed?
Ideally, your business will have an “internet and social media policy” that will define whether the conduct involves a breach of obligations, outline the potential sanctions and specify the processes for investigation and possible disciplinary action.
Without an internet and social media policy, it is less straightforward as much of the law relating to the internet and social media is “old law” applied in a new setting.
Your disciplinary and investigatory processes will still be applicable, but there is a risk that some activities may fall through the cracks because your outdated policies did not foresee them, such as, for example, retweeting links.
What about more ambiguous offences, such as uploading footage of an embarrassing moment at the staff Christmas party to YouTube?
Does the footage really bring the business into disrepute or is it simply that your ego is bruised?
Sometimes showing you have a sense of humour can help to humanise your brand.
YouTube is full of clips of people doing embarrassing things that have gone viral and generated positive media attention and sales.
Employers should make sure to keep matters in proportion – not every offence is a hanging offence.
What steps can the employer take to regulate employee use of the internet out of working hours?
l Make sure your internet and social media policy is kept up to date. If you don’t have one, think about introducing one.
l Pay attention to what people say on the internet about your business. It is worthwhile making the occasional Google or Twitter search.
l If investigating an offence, obtain hard, printed copies of any web pages. On the internet, material can be easily removed or altered.
l Don’t sweat the small stuff. You may be the next viral sensation.– New Zealand Herald