Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn tackle your legal rights when it comes to social media and work.
QUESTION: I am a server at a high-end restaurant in Brisbane and have been in my job for two years this month. A couple of months ago, our bosses introduced a new social media policy, which seemed to be common sense — you know, don’t share pictures from at work, nothing racist or homophobic — but they’ve gone on a rampage. They’ve asked me to delete pictures going back years, but I can’t see how they breach the policy. When I raised that with my job, they said the pictures make it look like I party too much and that some of my outfits were “inappropriately revealing” and “raunchy”. I disagree — it’s just a few short skirts and low-cut tops. Also, I don’t think they should be able to censor my feed from so long ago — who is scrolling back that far anyway? What are my rights when it comes to social media at work? Beth, QLD
ANSWER: Employers are more frequently regulating and monitoring the way their employees behave, particularly in arenas like social media that have traditionally been seen as personal.
The line between what is work-related and what is personal is becoming more and more blurred, which is scary, when your job might be in jeopardy if you cross the line.
The use of social media to express oneself and an employer’s ability to monitor this, and take action against an employee who breaches a policy, questions age old rights such as freedom of speech and expression.
Certainly in your case Beth, your rights as an individual seem to be being infringed upon.
Upon commencement of a new job, most employees are required to enter into a written contract which outlines the terms of their employment, including their entitlements, and expected behaviour.
Most of the time, if you want the job, the contract requires you to agree to all workplace policies and codes of conduct which will likely include rules around the use of social media.
Your employer has the right to introduce a new policy, like the social media policy, as long as they clearly communicate it to you, and you are in agreement.
Your employer will be coming from the perspective that they wish to:
• Protect their business from reputational harm (eg. an employee becoming disgruntled and venting online);
• Protect their confidential information or secrets of success;
• Minimise their legal liability for any of your posts which may harass or discriminate another person — in some situations your employer will be responsible for your actions;
• Use employees as ambassadors for their business and brand.
A social media policy that contains clauses that aim to fulfil these purposes will generally be seen as reasonable.
The reasonableness of how the policy is interpreted and enforced and whether it infringes on your rights as an individual (like your employer’s request to delete your posts from many years ago) is a further important question up for debate.
Employers have been known to terminate or discipline employees, based on what they say is inappropriate social media activity in breach of their interpretation of their policy.
You’ll remember when Cricket Australia sacked an employee last year who tweeted about her views and met with government about accessibility to abortions in Tasmania.
Israel Folau is fighting Rugby Australia’s decision to terminate his contract after he posted comments on social media he claims involved him expressing freedom of religious belief.
It sounds like your employer is expecting you to take steps to censor your social media that are unfair, unnecessary and infringing on your rights.
You have every right to push back and ask them how such posts impact on their business or reputation so you can better understand their position.
If disciplinary action, or even termination follows, you should immediately contact the Fair Work Commission or seek legal advice, as there are strict time limits that apply.
The Commission and Courts will not allow an employer to intrude into your personal life to the extent that these controls are not a reasonable and proportionate response to the need for your employer to protect their interests.
From a practical perspective, we’d recommend you:
• Not list your place of work on your profile;
• Keep your profile private;
• Create two profiles, if you do need to use social media in a work context, so you can have a specific professional profile;
• Never whinge about your boss or work colleagues on social media. Even if you aren’t naming them, people will usually be able to identify who you are referring to;
• Remember that what has been posted is there forever (even if you try and remove it, screenshots of the posts are permanent);
• Think twice before you post — is someone at work likely to be offended by the post?
• Read the policy in detail, and if you think aspects of it are unclear, ask your employer what the purpose of those clauses are and consider whether they fit into the reasons above.
This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.
If you have a legal question you would like Alison and Jillian to answer, please email email@example.com