1. SHIFTING LANDSCAPES
The online challenge to traditional business models
A research study by DLA Piper
REPoRT 4
KNoWING YoUR TWEET
FRoM YoUR TREND:
KEEPING PACE WITH
SoCIAL MEDIA IN THE
WoRKPLACE
2. CoNTENTS
About this report ������������������������������������������������������������ 05
Foreword ��������������������������������������������������������������������������� 06
The headlines �������������������������������������������������������������������� 07
Social media in context ��������������������������������������������������08
Business engagement ������������������������������������������������������ 09
When social media and the workplace collide ��������� 12
Time to review your privacy settings? ������������������������ 18
Social media monitoring – following or intruding? ��� 22
What next? ������������������������������������������������������������������������ 25
Identifying an approach to social media ������������ 25
Implementing a social media policy �������������������� 26
About DLA Piper ������������������������������������������������������������� 28
3. AboUT THIS REPoRT
This report is based on data from
■ 250 online interviews with senior business decision makers
■ 100 online employee interviews
■ Five in-depth qualitative interviews with senior business decision makers
within organisations which have 250+ employees and revenues of greater than £30m, all carried out during June 2011.
The study was conducted by Coleman Parkes Research on behalf of DLA Piper.
Those providing responses to the study hold the following roles within their organisation:
Human Resources/Employee
benefits director/manager: 41%
In house legal counsel: 29%
C-suite executive: 30%
DLA Piper’s approach to service provision goes beyond Our research demonstrates that whilst social media
pure legal advice and we aim to add real benefit and is being embraced in the corporate world, the pace
value to the way businesses engage with their employees. at which it is developing is such that organisations’
We recognise the need to offer our clients a practical policies and procedures are struggling to keep up.
and commercial approach to the use of social media in Few businesses have adequate procedures in place to
the workplace which upholds the reputation and values protect themselves yet they are looking to increase
of the employer while managing the expectations and their business use of social media. This report offers
requirements of employees. comprehensive analysis of the data and advice on dealing
with the pitfalls of engaging with social media from an
Reflecting its position as a leader in topical employment
employer’s point of view.
law research, DLA Piper commissioned Coleman Parkes
Research to carry out an in-depth study on social media We are pleased to share our findings with you in this
in the workplace. The responses, which include views report and as experts in social media in the employment
from both employees and senior decision makers in arena we would welcome the opportunity to talk to you
large business enterprises, have been analysed and are about your approach to this topical subject.
presented with detailed commentary in this report.
The report explains the issues in a straightforward way to
help you find pragmatic solutions so you can form your
social media strategy.
www.dlapiper.com | 05
4. FoREWoRD
Social media is seldom out of the news� Facebook, Twitter, LinkedIn, YouTube and other social
networking sites link millions of people across the world every day and have become an important
way for people to connect, meet and communicate� Social media has become an integral part of the
way we live and increasingly affects the way we work and do business, echoing the way in which
the advent of email and the proliferation of the internet changed the workplace in the 1990s�
Most businesses now recognise how positive use of social media can be an effective tool for
marketing and brand awareness� However, the next few years are likely to see a major growth in
the use of social media in the workplace, whether as a tool for large organisations to communicate
Kate Hodgkiss with a geographically diverse workforce, or for training, or to allow teams to collaborate and share
Partner ideas�
Employment, Our study reveals a spectrum of engagement with social media in the workplace, ranging from
Pensions & Benefits businesses actively using social media, internally and externally, as a tool to achieve better business
kate�hodgkiss@dlapiper�com outcomes, to those who simply have employees making personal use of social media and are
October 2011 tentatively exploring the marketing possibilities� Only a tiny minority of organisations have no
involvement with social media� More than three quarters (76%) of the employer respondents to our
study have a corporate social media presence while 95% of employees use social media channels for
personal and/or work related activities�
Whether you’re a regular tweeter or new to the game, a Facebook aficionado or a beginner,
there is no mistaking that Twitter, Facebook and LinkedIn have had a major impact on the way we
interact and communicate�
Unfortunately, the impact is not always positive� Employee use of social media, inside and outside
the workplace, can expose employers to serious legal liabilities� Social media presents employers
with some new problems, a new platform for existing problems and potential to magnify common
business risks�
Social media’s flexibility, informality and capability to reach an enormous audience brings with it
difficulties in controlling and monitoring the information placed on these sites� Social media posts
can easily ‘go viral’, spreading quickly and uncontrollably through a network of contacts� This is why
social media is so popular as a marketing medium but it also poses significant risks� Employers face
difficult challenges in monitoring and guiding the social media activities of their employees� Social
media can be big news and no employer wants to be at the centre of the next media storm over a
social networking blunder� Understanding these complex issues is a challenge, particularly as many
decision makers may lack the detailed knowledge of how social media works to fully appreciate the
opportunities and risks that engagement with social media poses�
Businesses need to understand how to minimise the risks� However, our study highlights that
many are failing to protect themselves against the legal ramifications, as social networking practices
outpace business policies�
At one end of the spectrum, an option being taken by some employers is to simply block employee
access to social media and prohibit posts about or connected to the employer� Our study shows
that 24% of employers block access to social media sites on company devices while at work, and
a further 40% prohibit but do not block usage� However, organisations who wish to engage with
social media cannot practically block employee usage and, for many, effective control of the legal
risks inherent in the use of social media requires a more sophisticated approach� As use of social
media grows, customers, insurers and investors are likely to insist that businesses adopt stricter
policing of employee behaviour, particularly with regard to confidential information� Undertaking
such policing in the wrong way creates its own legal risks�
Anyone who ignores social media platforms also ignores an extremely effective tool for external
and internal communication, but it is difficult for employers to strike the delicate balance between
retaining control and encouraging the levels of trust and collaboration which are at the heart of
social networking� Employers are urged to adopt an approach of active regulated engagement,
supported by a clearly communicated policy� This approach will provide a business with the tools to
better manage the impact social media has on its workplace and limit its exposure to the legal risks�
06 | Knowing your tweet from your trend: keeping pace with social media in the workplace
5. THE HEADLINES
The top five risks of social media in the
workplace are:
■ HR policies and practices not keeping pace
with technology
■ bullying and harassment
■ discrimination
■ disclosure of confidential information
■ damage to reputation and brand
76% of medium to large employers have some
form of corporate social media presence�
Employers who engage with social media
are most likely to be on Facebook (86%),
LinkedIn (79%) or Twitter (62%)
Workplace use of social media has,
so far, been driven by Marketing�
But this is changing and Human
Resources are increasingly using
social media for recruitment, Employers are struggling to resolve the conflict between business
employee communication, employee opportunities presented by social media in the workplace and
engagement and team working risks posed by employee usage
Employers’ internal
regulation is not keeping
pace with technology
and requires significant
improvement to mitigate
the risks of the extended
business uses of social The majority of employers address social
media media in their policies but are then failing to Many employers
put their policy into action with proper staff do not adequately
communication, training and monitoring protect confidential
information against
the risks posed by
social media in the
workplace and a
significant number
are not adequately
Employee conduct issues related to social media in the workplace are a significant protected in respect
problem for employers� Around one-third have used disciplinary proceedings in of discrimination
respect of some aspect of employee social media activity risks
www.dlapiper.com | 07
6. SoCIAL MEDIA IN CoNTExT
Social media is a group of
internet-based websites and
applications which allow the
creation and exchange of
user-generated content
FACEbooK1
Facebook was founded in February 2004, and since then has
become the most popular website in the UK and the most
popular social network in the world. Members can “friend”
each other; upload and tag images with the people they know;
share thoughts, videos and other media on “status updates;”
and join groups on particular interests. Companies can also
create pages to promote their brand.
■ Facebook recognises 750 million users
■ 50% of all users log in every day
■ 700 billion minutes per month are spent on Facebook
LINKEDIN 2
■ More than 250 million users access Facebook via mobile LinkedIn was launched in 2003 and is the largest professional
devices social networking website. LinkedIn users can “connect” with
■ An average user has 130 friends past and present colleagues or workmates, and forge new
connections with potential business contacts. Features include
■ Nearly 50% of users are aged 20 – 39 the ability to provide “recommendations” for contacts; make
“introductions” via a shared connection; and display a public
TWITTER 3 profile summarising work experience and expertise. LinkedIn
also facilitates the exchange of know-how and ideas with
Twitter is a microblogging platform that allows users to
send out messages (“tweets”) using only 140 characters or professionals in the same field.
less. Used by individuals, businesses and celebrities alike, ■ Over 120 million professionals are registered in over 200
tweets are displayed in real-time and can be subscribed countries
to (known as “following”). Since the first tweet back in ■ Over 20 million are registered in Europe
2006, Twitter now receives 230 million new tweets a day,
containing a mix of links, photos, comments and news.
■ Around 1 million new users join every week – more than 2
per second
■ 460,000 new sign ups every day ■ More than 2 million companies are registered
■ 230 million tweets every day ■ Roughly 2 billion people searches were carried out in 2010
■ 100 million active users ■ Around 36% of users are aged 25 – 34
1
Source: Facebook (www.facebook.com/press/info.php?statistics) as at August 2011
2
Source: LinkedIn (http://press.linkedin.com/about) as at August 2011
3
Source: Twitter (http://business.twitter.com/basics/what-is-twitter, http://blog.twitter.com/2011/03/numbers.html) as at September 2011
08 | Knowing your tweet from your trend: keeping pace with social media in the workplace
7. bUSINESS ENGAGEMENT
THE BIg PIcTURE
On which social media sites do employers
have a corporate presence?
86% are on Facebook FROM MARkETIng TO
78% are on LinkedIn HUMAn RESOURcES
62% are on Twitter
34% are on a digital media sharing site What do employers use social media for?
17% are in a virtual world 80% for brand awareness
60% for marketing
42% for recruitment
39% for employee communication
37% for employee engagement
28% for team working
The continuing rise of social media is having a significant At present, most use of social media by organisations
impact on today’s workforce and our study reveals is outward facing, aimed at raising brand awareness,
that this phenomenon is capturing the imaginations of marketing and communicating with customers or
employers and employees alike. In terms of business use, consumers. We found that 80% of respondents use
76% of employers identified that they have a corporate social media for brand awareness, reflecting the fact
social media presence, defined as “a dedicated network that social media presents a unique opportunity to get a
within a social media site (e.g. LinkedIn or Facebook) or (hopefully positive) image of a business into the public
participation or marketing in online forums or blogs”. domain and connect with clients and customers.
Facebook emerges as the most popular choice for Businesses recognise the marketing potential of social
businesses wanting to engage with social media. 86% media sites and are keen to capitalise on the ease and
of employers who said that they had a corporate social speed with which the sites allow access to customers
media presence were on Facebook. LinkedIn follows and potential customers. Employers responding to our
closely behind, with 79% of employers having a corporate study said, “social media helps our company reach
presence on the site. Twitter is also popular, with 62% of multiple markets”, “social networking is the easiest way
employers having a corporate social media presence there.
www.dlapiper.com | 09
8. of finding potential customers” and social media is used,
“to respond to customer queries and complaints on a real-
time basis”.
However, employers are beginning to exploit the
other potential uses of social media in the workplace. Our organisation definitely
In addition to marketing, 42% currently use social media
for recruitment, and 44% plan to do so in the future. believes that social media can be
Social media also plays an important role in internal used positively in the workplace,
communication. Our study shows that many
organisations recognise the potential of social
and I have seen how it changes
media for improving employee engagement 37% of working practices for the better…
employers currently use social media as a tool for
employee engagement, and 39% use it for employee
we have experienced a better
communication. In addition to this, we found that 42% level of communication and
plan to use it for employee engagement and 48% for
employee communication in the future. Social media community within our workforce.
offers a space to create an internal platform to facilitate Developing communities of
the sharing of information and creativity.
best practice that surpass
geographic boundaries within
our organisation has been an
astonishingly successful transfer of
knowledge, ideas and skills.
Head of HR
global telecommunications
business
10 | Knowing your tweet from your trend: keeping pace with social media in the workplace
9. Engagement with social media can enable employers
to open up dialogue with the workforce in a way that
traditional methods of communication cannot, and has
the potential to enhance teamwork as an efficient way of
sharing information, knowledge and best practice across
geographically diverse workforces. Although only 28%
of respondents currently use social media for team
Developing a community feel to
working, 42% plan to do so in the future. communication within a large
Our survey also revealed that 41% of respondents organisation like ours is vital we
considered that improved communication between
employees and internal teams was an advantage gained believe to improving working
from social media usage for work related activities. environments and our employee
Social media offers innovative ways of communicating abilities. Social media enables this
not just with customers and consumers, but with
employees and prospective employees. Of the employers and we believe we are ahead of
questioned, 65% encourage employees to use social the market.
media for work related activities including networking
or sharing industry specific information. Head of HR
global telecommunications
business
www.dlapiper.com | 11
10. WHEN SoCIAL MEDIA AND THE
WoRKPLACE CoLLIDE
THE BIg PIcTURE
Of employees who use social media sites for personal use:
14% have posted a status update or tweeted about their work
22% have posted a status update or tweeted about a work colleague
28% have posted photos of colleagues or business activities
1% have posted confidential business information
39% have befriended a colleague or business contact on Facebook
39% have connected to a colleague or business contact via LinkedIn
HOT WATER
Our study reveals that use of social media sites is landing employees in hot water:
21% of employers have taken disciplinary proceedings because of information an
employee has displayed on a social media site about another individual
25% of employers have taken disciplinary proceedings because of information an
employee has displayed on a social media site about their activities at work
31% of employers have taken disciplinary proceedings because of information an
employee has displayed on a social media site about the organisation
30% of employers have taken disciplinary proceedings because of the level of an
employee’s social media usage at work
Managing employees’ use of social media is without doubt it. In terms of personal use, Facebook is closely followed
a tricky area that employers are increasingly being forced by Twitter, used by 50% of employees, and digital media
to contend with. sharing sites, such as YouTube and Flickr, used by 44%.
However, of all employers questioned, 65% actually Employees, ostensibly using social media sites for
encourage their employees to use social media for work personal use, also admit to posting information
related activities. Our study reveals, however, that the line directly relating to their work or connecting to/
between business and personal use can often be a fine befriending colleagues or contacts in a personal
one. LinkedIn is the most popular site for business use, capacity. (see The Big Picture box).
used by 23% of employees. Although Facebook is used for
To some extent, employers appear to recognise the risks
business purposes by just 5% of employees, it is the most
this brings. Despite the low business usage of Facebook
popular for personal use, with 59% of employees using
by employees, 37% of employers identified Facebook as
12 | Knowing your tweet from your trend: keeping pace with social media in the workplace
11. The greatest risk we have is that
employees post views, opinion
or information on their personal
social media accounts that are
attributable to our organisation ...
we believe the best way, indeed
the only practical way, to tackle
these things is by education
of use.
Head of HR
global telecommunications
business
presenting the most challenges or risks to their organisation
with 27% of employers identifying LinkedIn as presenting
the most challenges. However, a very low percentage
of employers (14%) have social media policies which
regulate the use of social media outside the workplace.
Our findings raise important questions about the
boundaries of the employment relationship. It is essential
that employers are able to draw a distinction between
an individual’s private life which cannot be controlled
by the employer, and their work activities, whether
inside or outside the workplace, about which it can be
legitimately concerned.
www.dlapiper.com | 13
12. FACING THE MUSIC
Failing to manage the use of social media by employees can have
serious ramifications for employers including:
■ damage to reputation and brand caused by
– derogatory comments posted about the organisation by an
employee
– association with controversial opinions posted by an
employee
– association with employees who might, from the
organisation’s perspective, be considered to act
inappropriately in their private life
– association with defamatory comments posted by an
employee about a third party
■ breaches of security and confidentiality caused by information
posted by an employee
■ liability for cyber bullying or harassment by its employees and/
or a third party
■ liability in respect of “recommendations” posted by an
employee’s colleagues
■ a loss of productivity because of time spent by employees on
social media sites while at work
14 | Knowing your tweet from your trend: keeping pace with social media in the workplace
13. In the Facing The Music box we highlight some of the
areas which potentially expose employers to damage. But
when will it be appropriate for an employer to take action?
An employee’s conduct on social media sites will be
relevant to an employer if it affects the employee, or Anything that is wrong or
could be thought to be likely to affect the employee, in
respect of their work or if it affects the reputation of the potentially offensive mentioned
business. The conduct does not have to take place during by an employee in a social media
the course of their working hours or even be connected with
the work. Relevant factors which will influence whether environment is much more
an employer should legitimately be concerned include:
likely to be damaging since it’s
the extent to which the employee’s conduct on a social
■
media site is, or could be made, public and the potential
international by nature.
readership;
HR Director
whether the employer is readily identifiable from the
consumer goods sector
■
information the employee has posted;
■ the nature of the employee’s role and the level of trust it
requires; and
■ the inconsistency of the employee’s actions with
and only 38% regulate use on employee owned devices.
their role.
Therefore, a sizeable majority of employees are able to
Effective management of any concerns requires access and use social media sites at will.
employers to have a clear strategy. Employers should
These findings represent a desire by business to engage with
have in place clear rules about the use of social media by
the social media phenomenon and an acceptance that it now
their employees both inside and outside the workplace.
forms a significant part of day to day life. However, they
These rules should be set out in well drafted social
also demonstrate a high degree of apathy or naivety as to the
media policies and procedures which are effectively
potential risks and/or a lack of engagement to do something
communicated to the workforce and complemented by
about them. This is further demonstrated by the fact that just
appropriate training.
14% of employers with some form of social media policy
Surprisingly, however, our research reveals that just have considered regulating employees’ use of social
25% of employers have a stand alone policy media outside the workplace.
governing the use of social media sites by
employees. It is more common (43% of employers)
to have a social media policy within an internet or
other policy, suggesting that for many employers
regulating social media use is not high on the
agenda. Reassuringly, 75% of employers who
have some form of social media policy say they
train their employees on its terms. However, a
surprisingly high percentage of employers
(32%) either do not have a policy at all, or do not
actually know whether their organisation has a
policy or not.
Of those employers who do have some form of
social media policy, just 46% regulate use of
social media sites on business owned devices
www.dlapiper.com | 15
14. A comprehensive social media policy should be
complemented by a well drafted disciplinary policy which
cross-refers to the social media policy. The disciplinary
policy should clearly set out which types of social media
Our general IT policy covers the misuse will constitute gross misconduct and, consequently,
could lead to summary dismissal. The importance of
use of social media via the company comprehensive and well-communicated policies cannot
IT network, but there is nothing be overstated. In the Wetherspoons case (see the
Case Round-Up boxes) the employer’s clear policies and
specific within the guidelines about procedures were crucial to its successful defence of an
what should be shared, said or employee’s unfair dismissal claim.
behaviour expected...there is no Notwithstanding the surprisingly low level of regulation
of employees using social media sites, employers do
formal checking procedure and of not appear to be shy about using the sites to monitor the
course this worries me a great deal. activities of their employees, with 23% of employers
confirming that they do this.
HR Manager
telecommunications business
CASE RoUND-UP
A number of cases dealing with social media misuse have been reported in 2010 and 2011.
Gill v SAS Ground Services UK Limited
(March 2010)
An employee, whose involvement in an event
at London Fashion Week whilst she was absent
Stephens v Halfords Plc (November 2010)
from work due to ill-health came to light through
her Facebook page, was found to have been fairly In this case, Halfords was found to have unfairly
dismissed. The employee was signed off sick from dismissed an employee who created a Facebook
work following a minor operation. A couple of days page entitled “Halfords workers against working
before she was due to return to work the employee 3 out of 4 weekends”. The employee had created
told her employer that she was “still too unwell” to the page after Halfords had concluded individual
return. However, that week she had been involved in briefings with members of staff concerning
an event at London Fashion Week which, according proposed changes to their working patterns and
to her Facebook page, involved her “auditioning terms and conditions. However, after noting
300 models” and choreographing a fashion show. some advice on Halford’s website about its policy
A YouTube video also showed the employee walking on social networking sites, the employee took
along a catwalk. The employee’s Facebook page the page down. At the disciplinary meeting, the
came to the attention of the employer when one of employee acknowledged that he should not have
the employee’s colleagues printed the page off and done what he did, made a full apology and said
showed it to their manager. The tribunal found that that his judgment may have been clouded by
the employee’s actions breached a number of the stress. On this basis the tribunal found that a
employer’s policies and that the decision to dismiss reasonable employer would not have summarily
was within the range of reasonable responses. dismissed the employee.
16 | Knowing your tweet from your trend: keeping pace with social media in the workplace
15. It is clear that employees may be underestimating the The employment disputes highlighted by our study are
potential to land themselves in hot water. Of the employees perhaps unsurprising given the number of cases highlighted
surveyed 64% said that, as far as they were aware, their in the media. News headlines regularly report employees’
social media usage was not monitored or they did not know social media misbehaviour, suggesting that disputes are
whether it was or not. This may mean that employees adopt becoming more and more commonplace. This has also been
a relatively relaxed and carefree attitude to the use of, or recognised by ACAS which has produced guidance to help
information displayed on, social media sites which, in turn, business, staff and trade unions handle the use of social
gives rise to the potential for employees to find themselves media in the workplace. In recent years, a number of cases
in trouble. have made their way to the employment tribunal and a
summary of some of the judgments made in 2010/2011 are
Of those surveyed, 31% of employers have implemented
in the Case Round-Up boxes.
disciplinary proceedings because of the information
that an employee has displayed on a social media site In the future, there seems no doubt that the social media
about the employer. A sizeable percentage of employers revolution will continue to gather pace. And with this will
have also implemented disciplinary proceedings in respect come fresh disputes between employers and employees.
of information employees have displayed on a social Employers must bring their policies and procedures
media site about another individual, information displayed into the internet age if they want to stay on top of their
about activities outside work and the level of social media employees’ behaviour and successfully manage the ever-
usage at work. See the Hot Water box. increasing challenges presented by social media.
CASE RoUND-UP
A number of cases dealing with social media misuse have been reported in 2010 and 2011.
Lerwill v Aston Villa Football Club
(February 2011)
In this case, Aston Villa were found to have
unfairly dismissed an employee who published
‘inappropriate’ comments on an unofficial
fan forum website outside working hours�
Preece v JD Wetherspoons Plc
The employee considered that he had been
(January 2011)
acting as an individual and not as a club employee�
In this case, Wetherspoons was found to have The tribunal accepted that Aston Villa had a
fairly dismissed an employee who published genuine belief in the employee’s misconduct and
offensive and abusive information on Facebook that there had been a reasonable investigation�
about an incident at work� Although the However, the decision to dismiss fell outside the
employee had been subjected to verbal abuse band of reasonable responses as the employee
and physical threats by a group of customers, her had never been given any indication of the severity
actions in publishing inappropriate information with which Aston Villa would view him posting
on Facebook about the incident, amounted to on the website, nor was there any guidance for
gross misconduct� Wetherspoons’ policies and him in any policy or procedure or his contract
procedures were clear that a failure to comply that would put him on notice that comments on
with its internet policy was gross misconduct and a public message board could result in disciplinary
that dismissal could result� proceedings and dismissal�
www.dlapiper.com | 17
16. TIME To REVIEW YoUR PRIVACY
SETTINGS?
THE BIg PIcTURE
65% of employers encourage employees to use social media for work
related activities including networking or sharing industry specific information
48% of employers say that they are exposed to risk because they cannot
control company information on social media sites
34% of employers say that they are exposed to risk because company
confidential information may be disclosed on social media sites
1% of employees admit to having posted company confidential information
on a social media site
12% of employers do not expressly prohibit the sharing of confidential
information in their policy on social media
29% of employers do not have express provisions in senior employees’
contracts dealing with ownership of business contacts stored on social
media sites
28% of employers do not have restrictive covenants in senior employees’
contracts governing the post termination use of business contacts stored on
social media sites
MAnAgIng THE RISk
Introduce or review confidential information provisions and post termination
restrictions in employment contracts to address the use of social media
Use a social media policy to emphasise the ban on disclosure of confidential
information and ownership of business contacts
consider requiring employees to adopt “closed” privacy settings on sites such as
LinkedIn
Step up monitoring during and after termination of employment to detect leaks of
confidential information and misuse of business contacts
Our study reveals that employers are concerned that social plans and budgets; details of planned promotions,
media presents a challenge to the management of their marketing or publicity exercises; information about secret
confidential information. 37% consider Facebook to be the manufacturing or production processes; product design
site which poses the most risk to them while 27% consider and invention information; and business terms or supplier
LinkedIn to pose the most risk. 48% say that social media and customer lists. As well as the negative impact on
sites present risk because they cannot control company competitive advantage which online disclosure of this
information on the sites. 34% say that risk arises because information could have, other harmful consequences
confidential information may be disclosed. A particularly include a compromised ability to preserve intellectual
significant risk is employees posting confidential property rights, a breach of insider trading laws or placing
information online, either intentionally or without the employer in breach of a confidentiality agreement with
thought. What constitutes confidential information varies a third party.
from business to business but could include business
18 | Knowing your tweet from your trend: keeping pace with social media in the workplace
17. The potential for employee disclosure of confidential
information is not a new risk but it is one which is
magnified by the internet and, in particular, social media.
Information posted online can reach a vast audience
very swiftly. Also, the quick and casual nature of social
media communications can lead employees to drop their
Risks? It is obviously people
guard and post information which they would never being indiscreet. Right up to
disclose in a more formal business context. Whilst only
1% of employee respondents admitted having posted
director level, we need some
confidential company information online, the reality sort of security procedures and
may be that many do not fully understand what
information is confidential and what is not.
compliance guidelines.
How can the risk of disclosure of confidential information C-suite executive
be managed? Traditionally, employers have protected
confidential information by way of contractual provisions information technology sector
which spell out the categories of information which
are secret and prohibit and set out the consequences of
disclosure including the potential for financial damages Also crucial is a social media policy prohibiting the use
plus disciplinary action and dismissal where the or disclosure of confidential information belonging to
disclosure is made during employment. These contractual either the employer or to any third party and spelling
clauses remain key to safeguarding information but they out the consequences of a breach. Surprisingly, 12% of
should be reviewed to ensure that they properly address employers with some form of policy on social media
the enhanced risks posed to confidential information by do not expressly prohibit the sharing of confidential
the rise of social media use inside and outside of work. information as part of their social media policy.
www.dlapiper.com | 19
18. successfully by effective monitoring of employees’
online activities. Our study reveals that although
employers recognise the value of monitoring as a means
of eliminating disclosure of confidential information,
this is not something which they are yet fully geared up
The benefits outweigh the risks to do. Only 23% of employers use social media sites to
so it’s a matter of managing them, monitor the activities of current employees and only
4% to monitor the activities of former employees.
reminding people of business
Besides the risk of online disclosure, the other significant
standards, of the company risk to confidential information posed by social media
expectations of behaviour in is the loss of control and confidentiality in relation to
business contacts. Sites such as LinkedIn create a list of
general which must then be an employee’s business contacts, including customers,
extended to any approach used which can present a range of problems for employers.
via social media. Business ethics A key question is who owns a list of business contacts.
Many people have a single LinkedIn profile, Facebook
is a huge part of who we are page or Twitter account, which they use for both
personal and professional purposes. For example, 46%
and we expect our workforce of employees said that they use LinkedIn for both
to understand and abide by business and personal purposes. LinkedIn users often
maintain their profile through multiple jobs and may feel that
those ethics by sticking to our this is personal and no business of their employer. However,
core values in how we conduct LinkedIn, like other social media sites, is becoming a
powerful channel for corporate marketing and recruitment
ourselves. and businesses need to be able to protect the information held
on the site to avoid employees using it inappropriately outside
HR Director work or after their employment ends.
oil and gas sector Information held on an internal database, such as a list
of contacts in Outlook, usually belongs to the employer.
In contrast, the legal position in respect of a network
Training on the social media policy should highlight that of contacts on, for example, LinkedIn is currently not
disclosure of confidential information is strictly forbidden. clear. For now, employers should address the potential
Finally, employers should ensure that their procedures for difficulties over ownership and management of contacts
detecting breaches of confidentiality are up to date. There on social media sites by specific provisions in employment
may still be value in checking up on employees who stay contracts and a social media policy.
late at work putting the photocopier through its paces but
employers are more likely to protect their information
20 | Knowing your tweet from your trend: keeping pace with social media in the workplace
19. To ensure access to contact details held on social media
sites, employers might want to require employees to
pass details of their work related LinkedIn and other
social media contacts to the employer so that these can
also be stored on an internal database. Something else
to consider is whether employees should be required to
We do appreciate the irony
disclose usernames and passwords for social media sites. that in promoting greater
Employment contracts should specify that the employer
regards contacts established during employment on sites
communications the very nature
such as LinkedIn as being part of its business connections of the interconnection of social
and thus confidential information which the employer owns.
Our study reveals that employers are behind the curve when
media means that people have to
it comes to updating contracts to take account of social be more careful about what they
media issues. For example, almost one third of employers
currently do not have express provisions in the employment communicate.
contracts of senior employees dealing with ownership of
business contacts stored on social media sites. Head of HR
A further point which some employers may want global telecommunications
to consider is a requirement that, on termination of business
employment, the employee must unlink and de friend
LinkedIn, Facebook, Twitter and other social network
contacts connected with their employment. On the one
a former employee from having access to business contact
hand this may help prevent valuable company information
information, it can at least attempt to prevent the employee
leaving the business with a departing employee and could
from using that information by prohibiting solicitation of
have a strong deterrent effect, but on the other hand “de
or dealing with clients or, more onerously, prohibiting the
friending” can be seen as an aggressive move in social
employee from joining a competing business.
networking etiquette and could impact on continuing
client relationships. It is also arguable whether this type of Again, employers are being slow to react here and
contractual requirement is legally enforceable. around a third of employers do not have restrictive
covenants in senior employees’ contracts governing
Another issue which arises is whether contact information
the post termination use of business contacts stored
is still confidential once it is “publicised” on a social media
on social media sites. Employers should review their
site. This is an issue which the courts will have to decide.
employment contracts with social media issues in mind to
In the meantime, employers should consider requiring
identify where post termination restrictions may need to
employees to adopt closed, rather than open, privacy settings
be introduced or revised and to include express reference
on sites such as LinkedIn so that contacts can only be seen
in restrictions to the use of social media. LinkedIn
by the employee and other contacts who share the same
recommendations also can provide valuable intelligence
connections. Employers will also want to encourage the use
to companies about their employees. A flurry of new
of any new technology which allows users to keep work and
LinkedIn recommendations may signal that the worker is
personal contacts and content separate on social media sites
looking for a new job and monitoring of post termination
as these become more widely available and used. However,
activity will be crucial for an employer to be able to
new developments in the technology will be of limited
identify and gather the crucial evidence of dealing which
use unless employers and employees understand how to
is essential in proceedings for enforcement of a covenant.
use them and understand the potential risks of misuse.
Overall, a better approach is to ensure that trade
connections are protected by way of contractual post
termination restrictions. If an employer cannot prevent
www.dlapiper.com | 21
20. SoCIAL MEDIA MoNIToRING –
FoLLoWING oR INTRUDING?
■ Over half of employers regulate employees’ use of social media on
either business or personal-owned devices
■ 21% of employees do not know whether their social media usage is
monitored
■ 14% of employers do not know whether their organisation has a
policy on employees’ social media usage
THE BIg PIcTURE
In order to control the legal risks inherent in employee networking, but on the other there is a growing awareness
use (and misuse) of social media, it is crucial to know that it is not necessarily advisable for every aspect of our
what they are up to online. This will involve monitoring lives to be publicly available.
employee social media activity. Monitoring of employees’
In ensuring that monitoring of social media does not
social media usage may be undertaken at any stage in
expose the organisation to legal risk a key issue is
the employment relationship, from the monitoring of
whether employees are aware of the methods or extent
prospective employees to assess their suitability for
of monitoring: whilst over half of employers regulate the
employment, to the monitoring of current employees’
use of social media on either business or personal-owned
usage to determine how often they are using social
devices, only 36% of employees believe their employer
media and for what purposes, to monitoring the social
is monitoring their usage and 21% do not know whether
media profiles of ex employees in order to protect
usage is monitored. Awareness of monitoring appears to
confidential information (see Time to Review your
diminish the lower down the organisational structure an
Privacy Settings? box).
employee is; a much higher proportion of clerical workers
However, as with so many aspects of social media and junior managers are unaware whether monitoring
usage in the workplace, there are both risks and benefits takes place than middle or senior managers.
associated with employer monitoring of employees’ use
of social media. On the one hand, monitoring is essential MoNIToRING DURING RECRUITMENT
if the organisation wishes to control the legal risks which
arise from employee use of social media. However, Social media is a convenient medium to attract job
monitoring social media usage can create its own legal applicants and sites such as LinkedIn are fast becoming
risks if it is done in the wrong way or for the wrong key recruitment tools. Social media also presents
reasons. more informal opportunities for employers to explore
an applicant’s work ethic, attitudes towards previous
It is important to recognise that monitoring may intrude employers, writing and communication skills and extra
into employees’ private lives, breach their data security curricular activities in ways which are not usually possible
and interfere with the relationship of mutual trust in an interview. However, employers need to be mindful
and confidence that should exist between employer and of the potential legal consequences associated with using
employee. The extent to which employers can monitor social media in the recruitment process.
the social media activities of employees, prospective
employees and ex employees is regulated by law and There is a danger that managers involved in recruitment
monitoring may also expose the organisation to other legal may be tempted to check out an applicant’s online profile
risks. There is a particular difficulty in that it is not always out of curiosity. There are two potential risks with this
easy to draw a distinction between work related and practice. Firstly, this type of background check is likely
private information. Privacy is becoming a key issue; on
the one hand, information sharing is at the heart of social
22 | Knowing your tweet from your trend: keeping pace with social media in the workplace
21. to breach an individual’s data protection rights. Secondly,
monitoring of personal information may lead to the risk of
discrimination.
The information obtained about an applicant through
social media will be personal data, and, in some cases, We’ve gone from 5 years ago
sensitive personal data for the purposes of the Data
Protection Act 1988. Collecting and using this data will when you couldn’t access anything
be data processing and could expose an employer to like this from internal IT resources
complaints to the Information Commissioner (IC). The IC
is likely to regard trawling social media to sift applicants unless it was unblocked for you
as a form of vetting. IC guidance is that employers should for a specific reason or task. So
only use vetting where there are particular and significant
risks to the employer, clients, customers or others, and very quietly, senior management,
where there is no less intrusive alternative. Employers
should only use vetting to obtain specific information, not
driven by HR largely, has been
for general intelligence gathering and should ensure that lifting all the restrictions we
the extent and nature of information sought is justified.
had to a more relaxed medium
It should also be noted that a Facebook profile or Twitter
feed may contain personal information about an employee
monitoring. So we have
or prospective employee which they would not want to be changed quite drastically, senior
disclosed in the context of the workplace, such as their
marital or family status, sexual orientation or hobbies management have invested a lot
and interests. Monitoring a prospective employee’s more trust in our employees than
Facebook or other social media account will often disclose
information which it would not be wise to ask about might once have existed.
during an interview. Even if such information is merely
viewed and not used in coming to a decision, it may be HR Director
difficult to prove in subsequent litigation that it had no oil and gas sector
effect on the decision maker.
Guidance for managers and HR professionals involved
in recruitment is key to managing these risks, but our
study reveals that only 44% of employers include rules
or guidelines on the use of social media in recruitment
policies. However, only 7% of respondents to our study
said that they were aware that decision makers in their
organisation used social media sites to monitor the
activities of prospective employees.
MoNIToRING DURING EMPLoYMENT
Monitoring employees’ usage of social media in terms of
sites visited and time spent on them during working hours
will rarely be contentious, provided employees have been
informed that their usage will be monitored and about
the purpose of monitoring. The monitoring of content,
however, is necessarily more intrusive and will require
tighter safeguards.
www.dlapiper.com | 23
22. Of the respondents questioned, 23% said that decision The key to effective legal monitoring and control of
makers in their organisation use social media sites to social media usage is a well drafted, tailored social
monitor the activities of employees. media policy.
Employers can monitor employees’ work related use of
social media provided such monitoring complies with MoNIToRING oF Ex-EMPLoYEES
data protection principles. Employees should be informed As set out in the Time to review your privacy settings?
what monitoring is taking place and the purposes for section above, monitoring of post-termination activity
which it is done. This information should be included in may be crucial for an employer to identify misuse of
the employer’s Data Protection Policy and in the Social confidential information and potential breaches of
Media Policy. The employer should consider alternatives restrictive covenants. However, our study reveals that
to monitoring which may be less intrusive. Monitoring of only 4% of employers use social media sites to monitor
employee usage of social media is particularly difficult the activities of former employees. Respondent employers
when employees can access Facebook via the app on their highlighted concerns with monitoring ex employees
smartphone. Monitoring of non work related social media which included “monitoring ex employees reduces the
usage outside the workplace is more problematic, both possibilities of them rejoining the company”.
legally and practically.
Our study reveals that employers are aware of the
An employee’s personal social media activity will reveal potential risks associated with monitoring social media
a wealth of information about them, some of which will activity such as “prospective employees may lose interest
be highly relevant to their employment. Accessing an in working with our organisation if they realise we
employee’s Facebook profile could highlight misconduct monitored their activities on social media websites”,
(for example, the employee who posts pictures of himself “It can create dissatisfaction among the employees”
windsurfing whilst supposedly too ill to come to work). and “We can’t expect effective recruitment under such
Online activity may breach confidentiality obligations or monitoring”.
expose the employer to reputational damage. Comments
posted online may amount to harassment of other
employees or defamation of third parties.
24 | Knowing your tweet from your trend: keeping pace with social media in the workplace
23. WHAT NExT?
IDENTIFYING AN APPRoACH To SoCIAL MEDIA
Social media is here to stay and, as we have seen, there is an array
of positive uses to which it can be, and is increasingly being, put in the
workplace. For most organisations, ignoring social media and blocking or
banning its use by employees will not be a workable or desirable solution.
Failing to engage with social media will not only deprive a business of the
evident benefits it can offer but is also likely to lead to a lack of understanding which
will make the associated risks more difficult to manage. Our recommendation is that
employers should accept that the use of social media for business purposes is on the
increase and should adopt an approach of active regulated engagement supported by
policy, training and monitoring. Organisations which decide that this is the right approach for
them should –
Send a clear signal about company expectations for ■ screen in a uniform manner
❑
employee use of social media by adopting a stand ■ consider using a neutral party who will not be
alone social media policy involved in the recruitment decision to conduct
Train employees on the content of the social media the search and report only information which can
❑
policy and on effective and compliant use of social media legitimately be used in the hiring decision
Ensure the social media policy is consistent with other ■ document the decision making process
❑
policies such as anti harassment and bullying, disciplinary ■ bear in mind that recruitment is a two way process
rules and procedures, electronic communications and and candidates are also likely to be researching the
IT policies and any training on those policies organisation on social media
❑ Protect the Company’s corporate image and reputation ❑ Make sure the corporate response to harassment
and preserve good business relationships by: (sexual or otherwise) and bullying through social
■ specifically prohibiting defamation through social media is consistent with the response to harassment
media in the employment contract; and and bullying in other contexts
■ amending policies to ensure that employees ❑ Require employees to sign a form confirming that
understand that social media messages may reflect they have received, read and understood a copy of
on their employer. Consider requiring employees to the social media policy
state in their social media postings that their views ❑ Provide and promote alternative mechanisms for
do not necessarily reflect the views of the company employees to raise concern or vent frustration about
Educate employees about the consequences of disclosing the working environment or colleagues
❑
or misusing the company’s confidential information BUT do not restrict social media usage
or intellectual property in the social media context disproportionately. An outright ban on social media
Train management on appropriate and effective use in the workplace is likely to be resented and
❑
employee monitoring and enforcement of the promote bad feeling towards the employer, especially
various company policies, restrictions, guidelines if employees work long hours. Draconian restrictions
and contract provisions relating to social media, in can undermine employee morale and encourage non
compliance with employees’ privacy rights compliance. Additionally, media or other external
awareness of an overly strict policy may backfire and
❑ Employers who wish to supplement traditional result in a negative public image
recruitment practices with undertaking checks on
social media profiles should think carefully before
doing so and ensure that they:
■ make it clear in advertisements and other recruitment
literature that such checks will be carried out
www.dlapiper.com | 25
24. IMPLEMENTING A SoCIAL MEDIA PoLICY
The implementation of a suitably drafted social media policy will allow an employer to set guidelines on acceptable use
of social media and will help to protect against legal liability and reputational damage. However, there is no ‘one size
fits all’. Different employers will have different priorities and risk factors. The important thing is to develop a clear
company philosophy.
❑ The social media policy should be stand alone and ❑ Explain that the company monitors the use of social
not part of the IT usage policy or bullying and media in the workplace. Explain how and for what
harassment policy, although other relevant policies purposes monitoring is carried out
should cross refer to it
❑ Include appropriate restrictions covering:
❑ Consider appropriate definitions: the policy needs to ■ employee use of company IT resources
make it clear what is and is not covered, but social
media is a developing area and the policy should ■ employee use of company or third party
take account of possible future developments (eg clients, customers, partners) intellectual
property assets and confidential and privileged
❑ Remind employees that social media activity in
information
the workplace is not necessarily private and that the
employer can discipline employees for conduct that ■ employee use of third party intellectual property
breaches employee policies in the social media arena ■ protection of third party confidentiality and
❑ Specify that online conduct harmful to the company privacy
can amount to misconduct or in some cases gross ■ prohibition on harassment or bullying of other
misconduct employees
❑ Address whether access to social media sites is ■ prohibition on discrimination
allowed during working hours and if so explain the
purpose of allowing access and the company’s level ■ prohibition on negative comments about the
of tolerance towards personal use company, its employees, business contacts or
competitors
❑ Address whether employees’ Twitter, blogging and
other profiles are permitted to identify them as an ❑ Make it clear that breach of the policy is a
employee of the organisation and if so whether they disciplinary matter which in serious cases may lead
should state that all opinions are personal and not to summary dismissal
the view of the employer ❑ Explain that employees should raise work related
Require appropriate privacy settings to be applied complaints or concerns via the grievance procedure
❑
to certain types of accounts. Consider whether to and not on social media sites
require employees to have separate personal and
work accounts
It’s a dynamic policy which means it is
not something I would ever put away
as a finished or final copy. As social
media changes, so will the policy.
Head of HR
global telecommunications
business
26 | Knowing your tweet from your trend: keeping pace with social media in the workplace
25. “We have just framed a policy, but it’s not yet been released
to employees. It regulates the use of social media only in terms
of general behaviour we expect, for example it doesn’t bar
employees from going on their personal accounts. It will be a
separate policy from any other, distinct from the general IT usage
rules as we expect we will have to revisit it again as time goes
by. It was formed in partnership between Marketing, HR and IT
departments. It introduces a set of guidelines of what to do and
what not to do.”
HR Director
consumer goods sector
