Presentation at the AoIR #15 conference in South Korea October 2014

1. Regulation of social media in
the workplace:
balancing risks to employers’
against employees’ autonomy
AoIR Conference-South Korea October 2014
Ms Jacinta Buchbach – PhD Candidate
j.buchbach@hdr.qut.edu.au

2. Overview of the research
 Objectives
 Background
 Recruitment Phase
 Employment Phase
 Post-Employment Phase
 Research Question
 Methodology
 Research so far
 Exclusions and Limitations
 Questions

3. Objectives
 My research aims to:
 Provide a framework for evaluating tensions arising
out of social media use in workplace
 Provide clear recommendations for law reform and
business practice
 Improve certainty and safeguard employee
legitimate interests and employers mitigation of risk

4. Background
 Social media use is adversely impacting the employment relationship
 The pervasive nature of social media is blurring the boundaries of
private and public space
 Unresolved conflict in the law between employee ‘autonomy’ and
business managing their risk
 Conflict can arise in any of the three phases of the employment
relationship:
A. Recruitment
B. Employment
C. Post-Employment

5. Background
 Employee Tensions
 Employees consider that their online autonomy is being
infringed by their employer
 Employer Tensions
• Increased legal liability for employers which can
adversely affect business reputation
 No Social Media regulation or industry guidelines
 Social media policies regulate employee use
 Do they balance competing tensions?

6. Employment
Post employment
Regulation of
social media in
the workplace:
balancing risks
to employers’
against
employees’
autonomy

7. Emerging issues -
Recruitment
• Social Recruitment strategies are outpacing traditional
recruiting methods
• United States study found 45% of hiring managers are
screening applicants
• Mining of personal data online creating legal problems:
 Privacy, ‘cyber-vetting’ and employer ‘friending’
 Discrimination of protected attributes disclosed
 Predictive analytics for person-organisation ‘fit’

8. During Employment

9. O’Keefe v The good Guys [2011]
• Salesman threatened payroll
manager over pay dispute on
FB page
• Employer issue: vicariously
liable sexual harassment,
breach employee handbook
• Employee issue: Privacy
issues as FB page did not
identify his employer and
comments not intended for
her to see. Fellow employees
were his friends and saw the
post
Salesman

10. Linfox Australia cases
Linfox v Stutsel [2012]
Driver made sexual and
racial comments about
managers on his FB page
• E/er issue: Vicarious
Liability
• E/ee issue: Free speech
• Commission: within
right to free speech,
though distasteful, not
hurtful NO SM POLICY
Pearson v Linfox [2014]
Driver committed a whole range of
conduct including ‘refused to sign’
to acknowledge training in SM
Policy
• E/er issue: breach of contract
• E/ee issue: policy sought to
‘constrain’ his actions off work
and breach of various individual
rights
• Commission: not Commission’s
role to determine if policy in
breach of individual rights

11. Little v Credit corporation
[2013]
• E/ee anonymously
criticised a client on their
FB page and made sexual
comments about a new
e/ee on his FB page
• E/er issue: breach of
contract/vicarious
liability/misconduct
• E/ee issue: anonymous FB
account, but e/ees were
friends. ‘Private’ and free
speech
• Commission: entitled to an
opinion, but not to ‘the
world at large’ which
reflects badly on employer
FB Profile:
Work as: a ‘Dinosaur
Wrangler’
Employer: ‘Jurassic
Park’

12. Banerji v Bowles [2013]
@LaLegale aka
APS
Immigration
worker Michaela
Banerji
@LaLegale tweeted ‘critical’
comments about
immigration detention
policies
• Investigators revealed B
was twitter a/c owner
• APS issue: Code of
conduct breach
• B issue: implied
constitutional right to
express political opinion
• Fed Circuit Crt: right
limited, if did exist, no
licence to breach contract
• Fed Govt: B left APS and
settlement was reached
privately

13. Case EXAMPLES

14. Emerging issues
Post-employment
• Post-employment, uncertainty surrounds who controls
customer connections made during the course of
employment
• Why? Valuable interest in private online branding which
clashes with goodwill in business customers
• Unsettled law in United States-proprietary ownership rights in
Eagle v Morgan compare United Kingdom which draws upon
the law of Agency (Fairstar v Adkins) and confidential
information (Whitmar v Gamage)
• In Australia, intangible information is not ‘property’
• But employer CONTROL through confidential information and
restraint of trade clauses in contract OR SOCIAL MEDIA POLICY

15. Common defence raised
AUTONOMY
ONLINE
EU proposals erode internet freedoms
Published on : 27 December 2011 - 10:35pm | By Willemien Groot (© Cartoon movement)

16. Research Question
How should social media in the
workplace be regulated to effectively
balance competing
employee/employer legal interests?

17. Research Question
• Identify the legal risks and emerging tensions arising out
of social media use with regards to the recruitment,
employment and post-employment stages
• Critically analyse the current law and business practice
in managing risk and striking an appropriate balance
between competing employee and employer interests
• Identify potential avenues for reform of Australian law
with regard to developments in the United States and
United Kingdom

18. Methodology Phase one
3 Phases of the Research:
 The first phase in-depth review and analysis of the
legal tensions that exist in the employment
relationship with the identification of potential rights
of employees and employer risk factors

19. Methodology Phase two
 Theoretical research supplemented with findings from a
social media policy audit, will inform a desirable balance
to regulate and ease tensions in the employment
relationship
 The conceptual framework will focus on the economic
interests of employers in managing risk and business
reputation, on the one hand, and conceptions of
autonomy interests of employees on the other
 Boundary theory reflects the relationship between an
individual, work and technology

20. Methodology Phase three
 The third phase will build on the theoretical
framework to identify potential reforms to Australian
law and best practice. These will be informed by an
analysis of doctrinal developments in other
common law jurisdictions (predominantly the United
Kingdom and the United States)

21. Research so far…
 Phase one
 Employee online interests:
• Presentation of the self
• Anonymity
• Privacy and free speech
 Employer online interests:
• Protect business reputation
• Protect other employees against online bullying and
harrassment
• Comply with specific guidelines in monitoring their online
brand

22. Research so far…
 Phase two
• Sample of social media policies collected online (not
representative sample)
• Two themes in policies: Clauses either too restrictive and/or too
broad
 Too restrictive
• Work Disclaimers impact an individual’s presentation of the self
and their freedom of anonymity
 Too broad
• Clauses sanction individuals from negative talk about work which
potentially chills workplace rights (eg right to make complaint
about working conditions)
 OUTCOME? CONFLICT AND IMPACTS WORK-LIFE BALANCE

23. Research so far…
 Phase 2
 Appropriate theoretical framework for technology, work
and private life exists in Boundary Theory (Nippert-Eng)
• Work-life conflict can be minimised utilising boundaries in
creating and maintaining more or less distinct ‘territories
of the self’
• Depends upon an individual’s preference for
segmentation and integration of work and the
permeability and flexibility of these boundaries
• Communicative tactics used to negotiate work flexibility,
boundary violations and employer ‘reciprocity’

24. Research so far…
 Phase two
 Figure 1: A healthy approach to technology and its impact on the
home/work domains, work, and people. (diagram adapted from Kristopher Thomas in
Workplace Technology and the Creation of Boundaries: The Role of VHRD in a 24/7 Work Environment)

25. Research so far…
 Are employers required to ensure social media policies
are fair to the employee?
 Doctrinal legal analysis
 Investigation into implied common law obligations of
employee contracts
 Two implied obligations
• Mutual Trust and Confidence
• Good Faith a remedy for employee
 Common law obligation for employees to obey lawful
directions

26. Exclusions and Limitations
 Analysis of government or public service social media
regulation
 Regulatory responses to cybercrime
 Big Data and Privacy Regulation
 Analysis of external regulatory corporate social media
compliance
 Cyber-bullying legislation
 ‘Property rights’ in social media

27. Questions????