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

“Bear in mind that employees constitute the face of the company and, often, its inadvertent voice as well.” She cites international trends as demonstrating the increasing gravity with which countries are approaching the social media issue. “Yet 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, therefore, says Davey, the development of social media law in South Africa lags behind the complex commercial realities. It is against this background that employers’ standard response is to block employees’ access to specific social networking sites – a totally ineffective approach, since the growing popularity of smart-phones and portable tablets readily bypass any such measures. Davey highlights the complexity of social media usage in terms of employment relations and employment law. Among the conundrums:

  • 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,” she says, “the risks posed to an employer by social media usage arise simply by virtue of an employer having employees; nothing more and nothing less.”

The risks include:

  • 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.

How, then, should an employer navigate the risks while still tapping into the power of social media tools?

Davey recommends as a start a well drafted contract of employment and policy, which establishes the norms of conduct to which an employee is required to adhere.

“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.”

She advises further that employers educate and provide guidelines to employees on the benefits and dangers of social media. “Doing so encourages responsible usage of social media platforms.”

Frequent social media workshops for employees, as regular use patterns emerge and develop, is another recommendation.

And to dovetail with the employee training, executives should 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, Davey advises employers to 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.” Noting that social media usage is constantly evolving, Davey says an employer’s policies and strategies should similarly evolve.

“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.”