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A Brave New World: Modern social media and employment relationships

15 June 2015


In a world where social media has an ever-increasing influence on business, employers need to thoroughly consider their stance on the intersection of the two. Employers and employees alike grapple with the changing world of technology. There are some key areas that everyone should have some understanding of.

While still not commonplace in New Zealand, employers have begun to include restraint of trade clauses in their contracts to prevent employees from alerting clients to their new position. Individuals eager to update their social media profiles with the details of their new job are being caught out by this emerging trend. The aim behind these restraint of trade clauses is to lessen the risk of employees poaching clients through social media and to allow the original employer a grace period in which they can affirm their relationships with clients.

While there may be some distinction between social media pages with a professional focus (i.e. LinkedIn), and those that are personal and purely social (i.e. Facebook), both are being increasingly regulated within the employment relationship. Employers need to decide whether it would be helpful and appropriate for them to implement company policies around professional social media accounts. Even if they consider such provisions to be unnecessary, it is important that employees remain aware that their online presence can have an influence on their employer’s business.

Another area to consider is employee’s online personal “brands”. Practically speaking, employees should be careful about anything they put on their social media pages.  Legal ramifications aside, whatever individuals say on social media becomes part of their own personal “brand”. Through social media, this “brand” becomes available to future employers.

Furthermore, where the personal “brand” of an employee becomes associated with their employer, and the employment relationship ends in a less than cordial manner, the business may well wish to sever the connection between the individual’s reputation and theirs. For example, in the US it was recently decided that an employee who refused to update his LinkedIn profile for seven months was guilty of fraudulent misrepresentation.

Another key area to consider, as readers are well aware, is the increasing importance of social media for the promotion of business. For many years, companies the world over have been increasingly present on social media pages such as Twitter, Facebook, LinkedIn, Instagram – even Pinterest. Utilisation of such social media platforms can be highly effective, but it is imperative that employers use their wisdom in appointing who controls their social media accounts and continue to be aware of who has access to their company’s publicity mechanisms, especially when dynamics within the business change.

The importance of such awareness was evident when British entertainment retailer HMV laid off nearly 200 employees. One of these workers had access to the company’s Twitter account and posted damning tweets such as “Mass execution of loyal employees who love the brand”, and “We’re tweeting live from HR where we’re all being fired! Exciting!”

Although the number of followers on the company’s account soared from 61,500 to 73,350 in 20 minutes, the phrase ‘all publicity is good publicity’ is probably not an accurate reflection of what the company’s Chief Executive was thinking at the time.

HMV’s story should be an eye-opener for employers and prompt them to ensure that access to company media accounts should be limited to a few individuals who are senior in the company, and are therefore unlikely to use their access in an inappropriate manner.

The changing technology of the digital age continues to catch both employers and employees unawares within the employment relationship. Employees should check their contracts thoroughly before making employment-related posts on social media and be hesitant to act rashly in public forums, in any event. Employers, in turn, should consider whether they should take steps to protect themselves from potential online-based abuse before they next renew employment contracts or update company policies.

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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