By Rosalind Davey,Lenja Dahms-Jansen Friday, September 14, 2012

International trends show that countries are taking the issue of social media usage a lot more seriously. However, social media usage in South Africa, both by companies (as a tool of trade) and employees (as a social utility), is still a relatively new occurrence.

Predictably, the development of law in this area tends to lag behind the complex commercial realities that a company faces as a result of these developments.

So what is the standard response that employers tend to adopt in order to deal with social media usage?

Most tend to block the employees’ access to specific social networking sites. However, this is like burying one’s head in the sand and being convinced that the problem has gone away simply because you can no longer see it. With the growing popularity of smartphones and portable tablets, restrictive measures such as these can be no more than illusory.

Social media usage complicates employment relations and, in turn, employment law. For example:

  • what are the implications of employees conducting themselves in the virtual world in a manner unbecoming of the company?
  • what are the ramifications of such conduct being committed during working hours on equipment that doesn’t belong to the company?
  • how do you deal with social media incidents?
  • how long can they be ignored or down-played?  

Evidently, the risks posed to an employer by social media usage arise simply by virtue of an employer having employees; nothing more and nothing less. Such risks may include the following :

  • Reputational damage
  • Delictual claims for damages
  • Contractual claims
  • Unfair dismissal claims
  • Harassment claims
  • IT system and software damage
  • Loafing
  • Poaching
  • Breaches of competition law
  • Loss of intellectual property
  • Ineffective enforcement of restraint of trade provisions
  • Unfair discrimination claims
  • Company boycotts
  • Missed marketing and networking opportunities for fear of all of the above.

The question that then arises is how an employer should navigate these risks whilst still tapping into the power of social media tools. An intelligently drafted contract of employment and policy, which establishes the norms of conduct to which an employee is required to adhere are a good start. However, before adopting any kind of social media policy, an employer needs to determine its social media strategy by assessing the business environment in which it operates.

Once the employer’s social media policy has been developed, it should be made readily accessible to existing and new employees.

It may further be advisable to educate and provide guidelines to employees on the benefits and dangers of social media in order to encourage responsible usage of social media platforms.

An employer should also consider introducing frequent social media workshops for employees as regular use patterns emerge and develop.

To dovetail with the employee training, executives should also receive regular updated training on the benefits and risks of social media usage and how best to implement and enforce the company’s social media strategy. As with every instance of misconduct, an employer should take a firm stand on abuse of and inappropriate behaviour on social media platforms by employees insofar as such conduct impacts on the business of the employer. However, be aware that in investigating such conduct, the employee’s privacy rights must be respected.

Social media usage is constantly evolving, as should an employer’s policies and strategies. As a long-term approach, employers would benefit from monitoring employee compliance and identifying social media usage trends among its employees to pinpoint areas of improvement.

A proactive approach, together with a sound social media strategy and policy, will ensure that an employer does not end up getting “poked” by the wrong end of the social media stick.

Rosalind Davey, a Partner, and Lenja Dahms-Jansen, an Associate, practice at corporate law firm Bowman Gilfillan