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DLA Piper Social media report 2011
 

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    DLA Piper Social media report 2011 DLA Piper Social media report 2011 Document Transcript

    • SHIFTING LANDSCAPESThe online challenge to traditional business modelsA research study by DLA PiperREPoRT 4KNoWING YoUR TWEETFRoM YoUR TREND:KEEPING PACE WITHSoCIAL MEDIA IN THEWoRKPLACE
    • CoNTENTSAbout this report ������������������������������������������������������������ 05Foreword ��������������������������������������������������������������������������� 06The headlines �������������������������������������������������������������������� 07Social media in context ��������������������������������������������������08Business engagement ������������������������������������������������������ 09When social media and the workplace collide ��������� 12Time to review your privacy settings? ������������������������ 18Social media monitoring – following or intruding? ��� 22What next? ������������������������������������������������������������������������ 25 Identifying an approach to social media ������������ 25 Implementing a social media policy �������������������� 26About DLA Piper ������������������������������������������������������������� 28
    • AboUT THIS REPoRTThis report is based on data from■ 250 online interviews with senior business decision makers■ 100 online employee interviews■ Five in-depth qualitative interviews with senior business decision makerswithin organisations which have 250+ employees and revenues of greater than £30m, all carried out during June 2011.The study was conducted by Coleman Parkes Research on behalf of DLA Piper.Those providing responses to the study hold the following roles within their organisation: Human Resources/Employee benefits director/manager: 41% In house legal counsel: 29% C-suite executive: 30%DLA Piper’s approach to service provision goes beyond Our research demonstrates that whilst social mediapure legal advice and we aim to add real benefit and is being embraced in the corporate world, the pacevalue to the way businesses engage with their employees. at which it is developing is such that organisations’We recognise the need to offer our clients a practical policies and procedures are struggling to keep up.and commercial approach to the use of social media in Few businesses have adequate procedures in place tothe workplace which upholds the reputation and values protect themselves yet they are looking to increaseof the employer while managing the expectations and their business use of social media. This report offersrequirements of employees. comprehensive analysis of the data and advice on dealing with the pitfalls of engaging with social media from anReflecting its position as a leader in topical employment employer’s point of view.law research, DLA Piper commissioned Coleman ParkesResearch to carry out an in-depth study on social media We are pleased to share our findings with you in thisin the workplace. The responses, which include views report and as experts in social media in the employmentfrom both employees and senior decision makers in arena we would welcome the opportunity to talk to yoularge business enterprises, have been analysed and are about your approach to this topical subject.presented with detailed commentary in this report.The report explains the issues in a straightforward way tohelp you find pragmatic solutions so you can form yoursocial media strategy. www.dlapiper.com | 05
    • FoREWoRD Social media is seldom out of the news� Facebook, Twitter, LinkedIn, YouTube and other social networking sites link millions of people across the world every day and have become an important way for people to connect, meet and communicate� Social media has become an integral part of the way we live and increasingly affects the way we work and do business, echoing the way in which the advent of email and the proliferation of the internet changed the workplace in the 1990s� Most businesses now recognise how positive use of social media can be an effective tool for marketing and brand awareness� However, the next few years are likely to see a major growth in the use of social media in the workplace, whether as a tool for large organisations to communicateKate Hodgkiss with a geographically diverse workforce, or for training, or to allow teams to collaborate and sharePartner ideas�Employment, Our study reveals a spectrum of engagement with social media in the workplace, ranging fromPensions & Benefits businesses actively using social media, internally and externally, as a tool to achieve better businesskate�hodgkiss@dlapiper�com outcomes, to those who simply have employees making personal use of social media and areOctober 2011 tentatively exploring the marketing possibilities� Only a tiny minority of organisations have no involvement with social media� More than three quarters (76%) of the employer respondents to our study have a corporate social media presence while 95% of employees use social media channels for personal and/or work related activities� Whether you’re a regular tweeter or new to the game, a Facebook aficionado or a beginner, there is no mistaking that Twitter, Facebook and LinkedIn have had a major impact on the way we interact and communicate� Unfortunately, the impact is not always positive� Employee use of social media, inside and outside the workplace, can expose employers to serious legal liabilities� Social media presents employers with some new problems, a new platform for existing problems and potential to magnify common business risks� Social media’s flexibility, informality and capability to reach an enormous audience brings with it difficulties in controlling and monitoring the information placed on these sites� Social media posts can easily ‘go viral’, spreading quickly and uncontrollably through a network of contacts� This is why social media is so popular as a marketing medium but it also poses significant risks� Employers face difficult challenges in monitoring and guiding the social media activities of their employees� Social media can be big news and no employer wants to be at the centre of the next media storm over a social networking blunder� Understanding these complex issues is a challenge, particularly as many decision makers may lack the detailed knowledge of how social media works to fully appreciate the opportunities and risks that engagement with social media poses� Businesses need to understand how to minimise the risks� However, our study highlights that many are failing to protect themselves against the legal ramifications, as social networking practices outpace business policies� At one end of the spectrum, an option being taken by some employers is to simply block employee access to social media and prohibit posts about or connected to the employer� Our study shows that 24% of employers block access to social media sites on company devices while at work, and a further 40% prohibit but do not block usage� However, organisations who wish to engage with social media cannot practically block employee usage and, for many, effective control of the legal risks inherent in the use of social media requires a more sophisticated approach� As use of social media grows, customers, insurers and investors are likely to insist that businesses adopt stricter policing of employee behaviour, particularly with regard to confidential information� Undertaking such policing in the wrong way creates its own legal risks� Anyone who ignores social media platforms also ignores an extremely effective tool for external and internal communication, but it is difficult for employers to strike the delicate balance between retaining control and encouraging the levels of trust and collaboration which are at the heart of social networking� Employers are urged to adopt an approach of active regulated engagement, supported by a clearly communicated policy� This approach will provide a business with the tools to better manage the impact social media has on its workplace and limit its exposure to the legal risks�06 | Knowing your tweet from your trend: keeping pace with social media in the workplace
    • THE HEADLINES The top five risks of social media in the workplace are: ■ HR policies and practices not keeping pace with technology ■ bullying and harassment ■ discrimination ■ disclosure of confidential information ■ damage to reputation and brand 76% of medium to large employers have some form of corporate social media presence� Employers who engage with social media are most likely to be on Facebook (86%), LinkedIn (79%) or Twitter (62%)Workplace use of social media has,so far, been driven by Marketing�But this is changing and HumanResources are increasingly usingsocial media for recruitment, Employers are struggling to resolve the conflict between businessemployee communication, employee opportunities presented by social media in the workplace andengagement and team working risks posed by employee usage Employers’ internal regulation is not keeping pace with technology and requires significant improvement to mitigate the risks of the extended business uses of social The majority of employers address social media media in their policies but are then failing to Many employers put their policy into action with proper staff do not adequately communication, training and monitoring protect confidential information against the risks posed by social media in the workplace and a significant number are not adequatelyEmployee conduct issues related to social media in the workplace are a significant protected in respectproblem for employers� Around one-third have used disciplinary proceedings in of discriminationrespect of some aspect of employee social media activity risks www.dlapiper.com | 07
    • SoCIAL MEDIA IN CoNTExTSocial media is a group ofinternet-based websites andapplications which allow thecreation and exchange ofuser-generated content FACEbooK1 Facebook was founded in February 2004, and since then has become the most popular website in the UK and the most popular social network in the world. Members can “friend” each other; upload and tag images with the people they know; share thoughts, videos and other media on “status updates;” and join groups on particular interests. Companies can also create pages to promote their brand. ■ Facebook recognises 750 million users ■ 50% of all users log in every day ■ 700 billion minutes per month are spent on Facebook LINKEDIN 2 ■ More than 250 million users access Facebook via mobile LinkedIn was launched in 2003 and is the largest professional devices social networking website. LinkedIn users can “connect” with ■ An average user has 130 friends past and present colleagues or workmates, and forge new connections with potential business contacts. Features include ■ Nearly 50% of users are aged 20 – 39 the ability to provide “recommendations” for contacts; make “introductions” via a shared connection; and display a public TWITTER 3 profile summarising work experience and expertise. LinkedIn also facilitates the exchange of know-how and ideas with Twitter is a microblogging platform that allows users to send out messages (“tweets”) using only 140 characters or professionals in the same field. less. Used by individuals, businesses and celebrities alike, ■ Over 120 million professionals are registered in over 200 tweets are displayed in real-time and can be subscribed countries to (known as “following”). Since the first tweet back in ■ Over 20 million are registered in Europe 2006, Twitter now receives 230 million new tweets a day, containing a mix of links, photos, comments and news. ■ Around 1 million new users join every week – more than 2 per second ■ 460,000 new sign ups every day ■ More than 2 million companies are registered ■ 230 million tweets every day ■ Roughly 2 billion people searches were carried out in 2010 ■ 100 million active users ■ Around 36% of users are aged 25 – 341 Source: Facebook (www.facebook.com/press/info.php?statistics) as at August 20112 Source: LinkedIn (http://press.linkedin.com/about) as at August 20113 Source: Twitter (http://business.twitter.com/basics/what-is-twitter, http://blog.twitter.com/2011/03/numbers.html) as at September 201108 | Knowing your tweet from your trend: keeping pace with social media in the workplace
    • bUSINESS ENGAGEMENT THE BIg PIcTURE On which social media sites do employers have a corporate presence? 86% are on Facebook FROM MARkETIng TO 78% are on LinkedIn HUMAn RESOURcES 62% are on Twitter 34% are on a digital media sharing site What do employers use social media for? 17% are in a virtual world 80% for brand awareness 60% for marketing 42% for recruitment 39% for employee communication 37% for employee engagement 28% for team workingThe continuing rise of social media is having a significant At present, most use of social media by organisationsimpact on today’s workforce and our study reveals is outward facing, aimed at raising brand awareness,that this phenomenon is capturing the imaginations of marketing and communicating with customers oremployers and employees alike. In terms of business use, consumers. We found that 80% of respondents use76% of employers identified that they have a corporate social media for brand awareness, reflecting the factsocial media presence, defined as “a dedicated network that social media presents a unique opportunity to get awithin a social media site (e.g. LinkedIn or Facebook) or (hopefully positive) image of a business into the publicparticipation or marketing in online forums or blogs”. domain and connect with clients and customers.Facebook emerges as the most popular choice for Businesses recognise the marketing potential of socialbusinesses wanting to engage with social media. 86% media sites and are keen to capitalise on the ease andof employers who said that they had a corporate social speed with which the sites allow access to customersmedia presence were on Facebook. LinkedIn follows and potential customers. Employers responding to ourclosely behind, with 79% of employers having a corporate study said, “social media helps our company reachpresence on the site. Twitter is also popular, with 62% of multiple markets”, “social networking is the easiest wayemployers having a corporate social media presence there. www.dlapiper.com | 09
    • of finding potential customers” and social media is used,“to respond to customer queries and complaints on a real-time basis”.However, employers are beginning to exploit theother potential uses of social media in the workplace. Our organisation definitelyIn addition to marketing, 42% currently use social mediafor recruitment, and 44% plan to do so in the future. believes that social media can beSocial media also plays an important role in internal used positively in the workplace,communication. Our study shows that manyorganisations recognise the potential of social and I have seen how it changesmedia for improving employee engagement 37% of working practices for the better…employers currently use social media as a tool foremployee engagement, and 39% use it for employee we have experienced a bettercommunication. In addition to this, we found that 42% level of communication andplan to use it for employee engagement and 48% foremployee communication in the future. Social media community within our workforce.offers a space to create an internal platform to facilitate Developing communities ofthe sharing of information and creativity. best practice that surpass geographic boundaries within our organisation has been an astonishingly successful transfer of knowledge, ideas and skills. Head of HR global telecommunications business10 | Knowing your tweet from your trend: keeping pace with social media in the workplace
    • Engagement with social media can enable employersto open up dialogue with the workforce in a way thattraditional methods of communication cannot, and hasthe potential to enhance teamwork as an efficient way ofsharing information, knowledge and best practice acrossgeographically diverse workforces. Although only 28%of respondents currently use social media for team Developing a community feel toworking, 42% plan to do so in the future. communication within a largeOur survey also revealed that 41% of respondents organisation like ours is vital weconsidered that improved communication betweenemployees and internal teams was an advantage gained believe to improving workingfrom social media usage for work related activities. environments and our employeeSocial media offers innovative ways of communicating abilities. Social media enables thisnot just with customers and consumers, but withemployees and prospective employees. Of the employers and we believe we are ahead ofquestioned, 65% encourage employees to use social the market.media for work related activities including networkingor sharing industry specific information. Head of HR global telecommunications business www.dlapiper.com | 11
    • WHEN SoCIAL MEDIA AND THEWoRKPLACE CoLLIDE THE BIg PIcTURE Of employees who use social media sites for personal use: 14% have posted a status update or tweeted about their work 22% have posted a status update or tweeted about a work colleague 28% have posted photos of colleagues or business activities 1% have posted confidential business information 39% have befriended a colleague or business contact on Facebook 39% have connected to a colleague or business contact via LinkedIn HOT WATER Our study reveals that use of social media sites is landing employees in hot water: 21% of employers have taken disciplinary proceedings because of information an employee has displayed on a social media site about another individual 25% of employers have taken disciplinary proceedings because of information an employee has displayed on a social media site about their activities at work 31% of employers have taken disciplinary proceedings because of information an employee has displayed on a social media site about the organisation 30% of employers have taken disciplinary proceedings because of the level of an employee’s social media usage at workManaging employees’ use of social media is without doubt it. In terms of personal use, Facebook is closely followeda tricky area that employers are increasingly being forced by Twitter, used by 50% of employees, and digital mediato contend with. sharing sites, such as YouTube and Flickr, used by 44%.However, of all employers questioned, 65% actually Employees, ostensibly using social media sites forencourage their employees to use social media for work personal use, also admit to posting informationrelated activities. Our study reveals, however, that the line directly relating to their work or connecting to/between business and personal use can often be a fine befriending colleagues or contacts in a personalone. LinkedIn is the most popular site for business use, capacity. (see The Big Picture box).used by 23% of employees. Although Facebook is used for To some extent, employers appear to recognise the risksbusiness purposes by just 5% of employees, it is the most this brings. Despite the low business usage of Facebookpopular for personal use, with 59% of employees using by employees, 37% of employers identified Facebook as12 | Knowing your tweet from your trend: keeping pace with social media in the workplace
    • The greatest risk we have is that employees post views, opinion or information on their personal social media accounts that are attributable to our organisation ... we believe the best way, indeed the only practical way, to tackle these things is by education of use. Head of HR global telecommunications businesspresenting the most challenges or risks to their organisationwith 27% of employers identifying LinkedIn as presentingthe most challenges. However, a very low percentageof employers (14%) have social media policies whichregulate the use of social media outside the workplace.Our findings raise important questions about theboundaries of the employment relationship. It is essentialthat employers are able to draw a distinction betweenan individual’s private life which cannot be controlledby the employer, and their work activities, whetherinside or outside the workplace, about which it can belegitimately concerned. www.dlapiper.com | 13
    • FACING THE MUSIC Failing to manage the use of social media by employees can have serious ramifications for employers including: ■ damage to reputation and brand caused by – derogatory comments posted about the organisation by an employee – association with controversial opinions posted by an employee – association with employees who might, from the organisation’s perspective, be considered to act inappropriately in their private life – association with defamatory comments posted by an employee about a third party ■ breaches of security and confidentiality caused by information posted by an employee ■ liability for cyber bullying or harassment by its employees and/ or a third party ■ liability in respect of “recommendations” posted by an employee’s colleagues ■ a loss of productivity because of time spent by employees on social media sites while at work14 | Knowing your tweet from your trend: keeping pace with social media in the workplace
    • In the Facing The Music box we highlight some of theareas which potentially expose employers to damage. Butwhen will it be appropriate for an employer to take action?An employee’s conduct on social media sites will berelevant to an employer if it affects the employee, or Anything that is wrong orcould be thought to be likely to affect the employee, inrespect of their work or if it affects the reputation of the potentially offensive mentionedbusiness. The conduct does not have to take place during by an employee in a social mediathe course of their working hours or even be connected withthe work. Relevant factors which will influence whether environment is much morean employer should legitimately be concerned include: likely to be damaging since it’s the extent to which the employee’s conduct on a social■ media site is, or could be made, public and the potential international by nature. readership; HR Director whether the employer is readily identifiable from the consumer goods sector■ information the employee has posted;■ the nature of the employee’s role and the level of trust it requires; and■ the inconsistency of the employee’s actions with and only 38% regulate use on employee owned devices. their role. Therefore, a sizeable majority of employees are able toEffective management of any concerns requires access and use social media sites at will.employers to have a clear strategy. Employers should These findings represent a desire by business to engage withhave in place clear rules about the use of social media by the social media phenomenon and an acceptance that it nowtheir employees both inside and outside the workplace. forms a significant part of day to day life. However, theyThese rules should be set out in well drafted social also demonstrate a high degree of apathy or naivety as to themedia policies and procedures which are effectively potential risks and/or a lack of engagement to do somethingcommunicated to the workforce and complemented by about them. This is further demonstrated by the fact that justappropriate training. 14% of employers with some form of social media policySurprisingly, however, our research reveals that just have considered regulating employees’ use of social25% of employers have a stand alone policy media outside the workplace.governing the use of social media sites byemployees. It is more common (43% of employers)to have a social media policy within an internet orother policy, suggesting that for many employersregulating social media use is not high on theagenda. Reassuringly, 75% of employers whohave some form of social media policy say theytrain their employees on its terms. However, asurprisingly high percentage of employers(32%) either do not have a policy at all, or do notactually know whether their organisation has apolicy or not.Of those employers who do have some form ofsocial media policy, just 46% regulate use ofsocial media sites on business owned devices www.dlapiper.com | 15
    • A comprehensive social media policy should be complemented by a well drafted disciplinary policy which cross-refers to the social media policy. The disciplinary policy should clearly set out which types of social media Our general IT policy covers the misuse will constitute gross misconduct and, consequently, could lead to summary dismissal. The importance of use of social media via the company comprehensive and well-communicated policies cannot IT network, but there is nothing be overstated. In the Wetherspoons case (see the Case Round-Up boxes) the employer’s clear policies and specific within the guidelines about procedures were crucial to its successful defence of an what should be shared, said or employee’s unfair dismissal claim. behaviour expected...there is no Notwithstanding the surprisingly low level of regulation of employees using social media sites, employers do formal checking procedure and of not appear to be shy about using the sites to monitor the course this worries me a great deal. activities of their employees, with 23% of employers confirming that they do this. HR Manager telecommunications businessCASE RoUND-UPA number of cases dealing with social media misuse have been reported in 2010 and 2011. Gill v SAS Ground Services UK Limited (March 2010) An employee, whose involvement in an event at London Fashion Week whilst she was absent Stephens v Halfords Plc (November 2010) from work due to ill-health came to light through her Facebook page, was found to have been fairly In this case, Halfords was found to have unfairly dismissed. The employee was signed off sick from dismissed an employee who created a Facebook work following a minor operation. A couple of days page entitled “Halfords workers against working before she was due to return to work the employee 3 out of 4 weekends”. The employee had created told her employer that she was “still too unwell” to the page after Halfords had concluded individual return. However, that week she had been involved in briefings with members of staff concerning an event at London Fashion Week which, according proposed changes to their working patterns and to her Facebook page, involved her “auditioning terms and conditions. However, after noting 300 models” and choreographing a fashion show. some advice on Halford’s website about its policy A YouTube video also showed the employee walking on social networking sites, the employee took along a catwalk. The employee’s Facebook page the page down. At the disciplinary meeting, the came to the attention of the employer when one of employee acknowledged that he should not have the employee’s colleagues printed the page off and done what he did, made a full apology and said showed it to their manager. The tribunal found that that his judgment may have been clouded by the employee’s actions breached a number of the stress. On this basis the tribunal found that a employer’s policies and that the decision to dismiss reasonable employer would not have summarily was within the range of reasonable responses. dismissed the employee.16 | Knowing your tweet from your trend: keeping pace with social media in the workplace
    • It is clear that employees may be underestimating the The employment disputes highlighted by our study arepotential to land themselves in hot water. Of the employees perhaps unsurprising given the number of cases highlightedsurveyed 64% said that, as far as they were aware, their in the media. News headlines regularly report employees’social media usage was not monitored or they did not know social media misbehaviour, suggesting that disputes arewhether it was or not. This may mean that employees adopt becoming more and more commonplace. This has also beena relatively relaxed and carefree attitude to the use of, or recognised by ACAS which has produced guidance to helpinformation displayed on, social media sites which, in turn, business, staff and trade unions handle the use of socialgives rise to the potential for employees to find themselves media in the workplace. In recent years, a number of casesin trouble. have made their way to the employment tribunal and a summary of some of the judgments made in 2010/2011 areOf those surveyed, 31% of employers have implemented in the Case Round-Up boxes.disciplinary proceedings because of the informationthat an employee has displayed on a social media site In the future, there seems no doubt that the social mediaabout the employer. A sizeable percentage of employers revolution will continue to gather pace. And with this willhave also implemented disciplinary proceedings in respect come fresh disputes between employers and employees.of information employees have displayed on a social Employers must bring their policies and proceduresmedia site about another individual, information displayed into the internet age if they want to stay on top of theirabout activities outside work and the level of social media employees’ behaviour and successfully manage the ever-usage at work. See the Hot Water box. increasing challenges presented by social media.CASE RoUND-UPA number of cases dealing with social media misuse have been reported in 2010 and 2011. Lerwill v Aston Villa Football Club (February 2011) In this case, Aston Villa were found to have unfairly dismissed an employee who published ‘inappropriate’ comments on an unofficial fan forum website outside working hours� Preece v JD Wetherspoons Plc The employee considered that he had been (January 2011) acting as an individual and not as a club employee� In this case, Wetherspoons was found to have The tribunal accepted that Aston Villa had a fairly dismissed an employee who published genuine belief in the employee’s misconduct and offensive and abusive information on Facebook that there had been a reasonable investigation� about an incident at work� Although the However, the decision to dismiss fell outside the employee had been subjected to verbal abuse band of reasonable responses as the employee and physical threats by a group of customers, her had never been given any indication of the severity actions in publishing inappropriate information with which Aston Villa would view him posting on Facebook about the incident, amounted to on the website, nor was there any guidance for gross misconduct� Wetherspoons’ policies and him in any policy or procedure or his contract procedures were clear that a failure to comply that would put him on notice that comments on with its internet policy was gross misconduct and a public message board could result in disciplinary that dismissal could result� proceedings and dismissal� www.dlapiper.com | 17
    • TIME To REVIEW YoUR PRIVACYSETTINGS? THE BIg PIcTURE 65% of employers encourage employees to use social media for work related activities including networking or sharing industry specific information 48% of employers say that they are exposed to risk because they cannot control company information on social media sites 34% of employers say that they are exposed to risk because company confidential information may be disclosed on social media sites 1% of employees admit to having posted company confidential information on a social media site 12% of employers do not expressly prohibit the sharing of confidential information in their policy on social media 29% of employers do not have express provisions in senior employees’ contracts dealing with ownership of business contacts stored on social media sites 28% of employers do not have restrictive covenants in senior employees’ contracts governing the post termination use of business contacts stored on social media sites MAnAgIng THE RISk Introduce or review confidential information provisions and post termination restrictions in employment contracts to address the use of social media Use a social media policy to emphasise the ban on disclosure of confidential information and ownership of business contacts consider requiring employees to adopt “closed” privacy settings on sites such as LinkedIn Step up monitoring during and after termination of employment to detect leaks of confidential information and misuse of business contactsOur study reveals that employers are concerned that social plans and budgets; details of planned promotions,media presents a challenge to the management of their marketing or publicity exercises; information about secretconfidential information. 37% consider Facebook to be the manufacturing or production processes; product designsite which poses the most risk to them while 27% consider and invention information; and business terms or supplierLinkedIn to pose the most risk. 48% say that social media and customer lists. As well as the negative impact onsites present risk because they cannot control company competitive advantage which online disclosure of thisinformation on the sites. 34% say that risk arises because information could have, other harmful consequencesconfidential information may be disclosed. A particularly include a compromised ability to preserve intellectualsignificant risk is employees posting confidential property rights, a breach of insider trading laws or placinginformation online, either intentionally or without the employer in breach of a confidentiality agreement withthought. What constitutes confidential information varies a third party.from business to business but could include business18 | Knowing your tweet from your trend: keeping pace with social media in the workplace
    • The potential for employee disclosure of confidentialinformation is not a new risk but it is one which ismagnified by the internet and, in particular, social media.Information posted online can reach a vast audiencevery swiftly. Also, the quick and casual nature of socialmedia communications can lead employees to drop their Risks? It is obviously peopleguard and post information which they would never being indiscreet. Right up todisclose in a more formal business context. Whilst only1% of employee respondents admitted having posted director level, we need someconfidential company information online, the reality sort of security procedures andmay be that many do not fully understand whatinformation is confidential and what is not. compliance guidelines.How can the risk of disclosure of confidential information C-suite executivebe managed? Traditionally, employers have protectedconfidential information by way of contractual provisions information technology sectorwhich spell out the categories of information whichare secret and prohibit and set out the consequences ofdisclosure including the potential for financial damages Also crucial is a social media policy prohibiting the useplus disciplinary action and dismissal where the or disclosure of confidential information belonging todisclosure is made during employment. These contractual either the employer or to any third party and spellingclauses remain key to safeguarding information but they out the consequences of a breach. Surprisingly, 12% ofshould be reviewed to ensure that they properly address employers with some form of policy on social mediathe enhanced risks posed to confidential information by do not expressly prohibit the sharing of confidentialthe rise of social media use inside and outside of work. information as part of their social media policy. www.dlapiper.com | 19
    • successfully by effective monitoring of employees’ online activities. Our study reveals that although employers recognise the value of monitoring as a means of eliminating disclosure of confidential information, this is not something which they are yet fully geared up The benefits outweigh the risks to do. Only 23% of employers use social media sites to so it’s a matter of managing them, monitor the activities of current employees and only 4% to monitor the activities of former employees. reminding people of business Besides the risk of online disclosure, the other significant standards, of the company risk to confidential information posed by social media expectations of behaviour in is the loss of control and confidentiality in relation to business contacts. Sites such as LinkedIn create a list of general which must then be an employee’s business contacts, including customers, extended to any approach used which can present a range of problems for employers. via social media. Business ethics A key question is who owns a list of business contacts. Many people have a single LinkedIn profile, Facebook is a huge part of who we are page or Twitter account, which they use for both personal and professional purposes. For example, 46% and we expect our workforce of employees said that they use LinkedIn for both to understand and abide by business and personal purposes. LinkedIn users often maintain their profile through multiple jobs and may feel that those ethics by sticking to our this is personal and no business of their employer. However, core values in how we conduct LinkedIn, like other social media sites, is becoming a powerful channel for corporate marketing and recruitment ourselves. and businesses need to be able to protect the information held on the site to avoid employees using it inappropriately outside HR Director work or after their employment ends. oil and gas sector Information held on an internal database, such as a list of contacts in Outlook, usually belongs to the employer. In contrast, the legal position in respect of a networkTraining on the social media policy should highlight that of contacts on, for example, LinkedIn is currently notdisclosure of confidential information is strictly forbidden. clear. For now, employers should address the potentialFinally, employers should ensure that their procedures for difficulties over ownership and management of contactsdetecting breaches of confidentiality are up to date. There on social media sites by specific provisions in employmentmay still be value in checking up on employees who stay contracts and a social media policy.late at work putting the photocopier through its paces butemployers are more likely to protect their information20 | Knowing your tweet from your trend: keeping pace with social media in the workplace
    • To ensure access to contact details held on social mediasites, employers might want to require employees topass details of their work related LinkedIn and othersocial media contacts to the employer so that these canalso be stored on an internal database. Something elseto consider is whether employees should be required to We do appreciate the ironydisclose usernames and passwords for social media sites. that in promoting greaterEmployment contracts should specify that the employerregards contacts established during employment on sites communications the very naturesuch as LinkedIn as being part of its business connections of the interconnection of socialand thus confidential information which the employer owns.Our study reveals that employers are behind the curve when media means that people have toit comes to updating contracts to take account of social be more careful about what theymedia issues. For example, almost one third of employerscurrently do not have express provisions in the employment communicate.contracts of senior employees dealing with ownership ofbusiness contacts stored on social media sites. Head of HRA further point which some employers may want global telecommunicationsto consider is a requirement that, on termination of businessemployment, the employee must unlink and de friendLinkedIn, Facebook, Twitter and other social networkcontacts connected with their employment. On the one a former employee from having access to business contacthand this may help prevent valuable company information information, it can at least attempt to prevent the employeeleaving the business with a departing employee and could from using that information by prohibiting solicitation ofhave a strong deterrent effect, but on the other hand “de or dealing with clients or, more onerously, prohibiting thefriending” can be seen as an aggressive move in social employee from joining a competing business.networking etiquette and could impact on continuingclient relationships. It is also arguable whether this type of Again, employers are being slow to react here andcontractual requirement is legally enforceable. around a third of employers do not have restrictive covenants in senior employees’ contracts governingAnother issue which arises is whether contact information the post termination use of business contacts storedis still confidential once it is “publicised” on a social media on social media sites. Employers should review theirsite. This is an issue which the courts will have to decide. employment contracts with social media issues in mind toIn the meantime, employers should consider requiring identify where post termination restrictions may need toemployees to adopt closed, rather than open, privacy settings be introduced or revised and to include express referenceon sites such as LinkedIn so that contacts can only be seen in restrictions to the use of social media. LinkedInby the employee and other contacts who share the same recommendations also can provide valuable intelligenceconnections. Employers will also want to encourage the use to companies about their employees. A flurry of newof any new technology which allows users to keep work and LinkedIn recommendations may signal that the worker ispersonal contacts and content separate on social media sites looking for a new job and monitoring of post terminationas these become more widely available and used. However, activity will be crucial for an employer to be able tonew developments in the technology will be of limited identify and gather the crucial evidence of dealing whichuse unless employers and employees understand how to is essential in proceedings for enforcement of a covenant.use them and understand the potential risks of misuse.Overall, a better approach is to ensure that tradeconnections are protected by way of contractual posttermination restrictions. If an employer cannot prevent www.dlapiper.com | 21
    • SoCIAL MEDIA MoNIToRING –FoLLoWING oR INTRUDING? ■ Over half of employers regulate employees’ use of social media on either business or personal-owned devices ■ 21% of employees do not know whether their social media usage is monitored ■ 14% of employers do not know whether their organisation has a policy on employees’ social media usageTHE BIg PIcTUREIn order to control the legal risks inherent in employee networking, but on the other there is a growing awarenessuse (and misuse) of social media, it is crucial to know that it is not necessarily advisable for every aspect of ourwhat they are up to online. This will involve monitoring lives to be publicly available.employee social media activity. Monitoring of employees’ In ensuring that monitoring of social media does notsocial media usage may be undertaken at any stage in expose the organisation to legal risk a key issue isthe employment relationship, from the monitoring of whether employees are aware of the methods or extentprospective employees to assess their suitability for of monitoring: whilst over half of employers regulate theemployment, to the monitoring of current employees’ use of social media on either business or personal-ownedusage to determine how often they are using social devices, only 36% of employees believe their employermedia and for what purposes, to monitoring the social is monitoring their usage and 21% do not know whethermedia profiles of ex employees in order to protect usage is monitored. Awareness of monitoring appears toconfidential information (see Time to Review your diminish the lower down the organisational structure anPrivacy Settings? box). employee is; a much higher proportion of clerical workersHowever, as with so many aspects of social media and junior managers are unaware whether monitoringusage in the workplace, there are both risks and benefits takes place than middle or senior managers.associated with employer monitoring of employees’ useof social media. On the one hand, monitoring is essential MoNIToRING DURING RECRUITMENTif the organisation wishes to control the legal risks whicharise from employee use of social media. However, Social media is a convenient medium to attract jobmonitoring social media usage can create its own legal applicants and sites such as LinkedIn are fast becomingrisks if it is done in the wrong way or for the wrong key recruitment tools. Social media also presentsreasons. more informal opportunities for employers to explore an applicant’s work ethic, attitudes towards previousIt is important to recognise that monitoring may intrude employers, writing and communication skills and extrainto employees’ private lives, breach their data security curricular activities in ways which are not usually possibleand interfere with the relationship of mutual trust in an interview. However, employers need to be mindfuland confidence that should exist between employer and of the potential legal consequences associated with usingemployee. The extent to which employers can monitor social media in the recruitment process.the social media activities of employees, prospectiveemployees and ex employees is regulated by law and There is a danger that managers involved in recruitmentmonitoring may also expose the organisation to other legal may be tempted to check out an applicant’s online profilerisks. There is a particular difficulty in that it is not always out of curiosity. There are two potential risks with thiseasy to draw a distinction between work related and practice. Firstly, this type of background check is likelyprivate information. Privacy is becoming a key issue; onthe one hand, information sharing is at the heart of social22 | Knowing your tweet from your trend: keeping pace with social media in the workplace
    • to breach an individual’s data protection rights. Secondly,monitoring of personal information may lead to the risk ofdiscrimination.The information obtained about an applicant throughsocial media will be personal data, and, in some cases, We’ve gone from 5 years agosensitive personal data for the purposes of the DataProtection Act 1988. Collecting and using this data will when you couldn’t access anythingbe data processing and could expose an employer to like this from internal IT resourcescomplaints to the Information Commissioner (IC). The ICis likely to regard trawling social media to sift applicants unless it was unblocked for youas a form of vetting. IC guidance is that employers should for a specific reason or task. Soonly use vetting where there are particular and significantrisks to the employer, clients, customers or others, and very quietly, senior management,where there is no less intrusive alternative. Employersshould only use vetting to obtain specific information, not driven by HR largely, has beenfor general intelligence gathering and should ensure that lifting all the restrictions wethe extent and nature of information sought is justified. had to a more relaxed mediumIt should also be noted that a Facebook profile or Twitterfeed may contain personal information about an employee monitoring. So we haveor prospective employee which they would not want to be changed quite drastically, seniordisclosed in the context of the workplace, such as theirmarital or family status, sexual orientation or hobbies management have invested a lotand interests. Monitoring a prospective employee’s more trust in our employees thanFacebook or other social media account will often discloseinformation which it would not be wise to ask about might once have existed.during an interview. Even if such information is merelyviewed and not used in coming to a decision, it may be HR Directordifficult to prove in subsequent litigation that it had no oil and gas sectoreffect on the decision maker.Guidance for managers and HR professionals involvedin recruitment is key to managing these risks, but ourstudy reveals that only 44% of employers include rulesor guidelines on the use of social media in recruitmentpolicies. However, only 7% of respondents to our studysaid that they were aware that decision makers in theirorganisation used social media sites to monitor theactivities of prospective employees.MoNIToRING DURING EMPLoYMENTMonitoring employees’ usage of social media in terms ofsites visited and time spent on them during working hourswill rarely be contentious, provided employees have beeninformed that their usage will be monitored and aboutthe purpose of monitoring. The monitoring of content,however, is necessarily more intrusive and will requiretighter safeguards. www.dlapiper.com | 23
    • Of the respondents questioned, 23% said that decision The key to effective legal monitoring and control ofmakers in their organisation use social media sites to social media usage is a well drafted, tailored socialmonitor the activities of employees. media policy.Employers can monitor employees’ work related use ofsocial media provided such monitoring complies with MoNIToRING oF Ex-EMPLoYEESdata protection principles. Employees should be informed As set out in the Time to review your privacy settings?what monitoring is taking place and the purposes for section above, monitoring of post-termination activitywhich it is done. This information should be included in may be crucial for an employer to identify misuse ofthe employer’s Data Protection Policy and in the Social confidential information and potential breaches ofMedia Policy. The employer should consider alternatives restrictive covenants. However, our study reveals thatto monitoring which may be less intrusive. Monitoring of only 4% of employers use social media sites to monitoremployee usage of social media is particularly difficult the activities of former employees. Respondent employerswhen employees can access Facebook via the app on their highlighted concerns with monitoring ex employeessmartphone. Monitoring of non work related social media which included “monitoring ex employees reduces theusage outside the workplace is more problematic, both possibilities of them rejoining the company”.legally and practically. Our study reveals that employers are aware of theAn employee’s personal social media activity will reveal potential risks associated with monitoring social mediaa wealth of information about them, some of which will activity such as “prospective employees may lose interestbe highly relevant to their employment. Accessing an in working with our organisation if they realise weemployee’s Facebook profile could highlight misconduct monitored their activities on social media websites”,(for example, the employee who posts pictures of himself “It can create dissatisfaction among the employees”windsurfing whilst supposedly too ill to come to work). and “We can’t expect effective recruitment under suchOnline activity may breach confidentiality obligations or monitoring”.expose the employer to reputational damage. Commentsposted online may amount to harassment of otheremployees or defamation of third parties.24 | Knowing your tweet from your trend: keeping pace with social media in the workplace
    • WHAT NExT?IDENTIFYING AN APPRoACH To SoCIAL MEDIASocial media is here to stay and, as we have seen, there is an arrayof positive uses to which it can be, and is increasingly being, put in theworkplace. For most organisations, ignoring social media and blocking orbanning its use by employees will not be a workable or desirable solution.Failing to engage with social media will not only deprive a business of theevident benefits it can offer but is also likely to lead to a lack of understanding whichwill make the associated risks more difficult to manage. Our recommendation is thatemployers should accept that the use of social media for business purposes is on theincrease and should adopt an approach of active regulated engagement supported bypolicy, training and monitoring. Organisations which decide that this is the right approach forthem should – Send a clear signal about company expectations for ■ screen in a uniform manner❑ employee use of social media by adopting a stand ■ consider using a neutral party who will not be alone social media policy involved in the recruitment decision to conduct Train employees on the content of the social media the search and report only information which can❑ policy and on effective and compliant use of social media legitimately be used in the hiring decision Ensure the social media policy is consistent with other ■ document the decision making process❑ policies such as anti harassment and bullying, disciplinary ■ bear in mind that recruitment is a two way process rules and procedures, electronic communications and and candidates are also likely to be researching the IT policies and any training on those policies organisation on social media❑ Protect the Company’s corporate image and reputation ❑ Make sure the corporate response to harassment and preserve good business relationships by: (sexual or otherwise) and bullying through social ■ specifically prohibiting defamation through social media is consistent with the response to harassment media in the employment contract; and and bullying in other contexts ■ amending policies to ensure that employees ❑ Require employees to sign a form confirming that understand that social media messages may reflect they have received, read and understood a copy of on their employer. Consider requiring employees to the social media policy state in their social media postings that their views ❑ Provide and promote alternative mechanisms for do not necessarily reflect the views of the company employees to raise concern or vent frustration about Educate employees about the consequences of disclosing the working environment or colleagues❑ or misusing the company’s confidential information BUT do not restrict social media usage or intellectual property in the social media context disproportionately. An outright ban on social media Train management on appropriate and effective use in the workplace is likely to be resented and❑ employee monitoring and enforcement of the promote bad feeling towards the employer, especially various company policies, restrictions, guidelines if employees work long hours. Draconian restrictions and contract provisions relating to social media, in can undermine employee morale and encourage non compliance with employees’ privacy rights compliance. Additionally, media or other external awareness of an overly strict policy may backfire and❑ Employers who wish to supplement traditional result in a negative public image recruitment practices with undertaking checks on social media profiles should think carefully before doing so and ensure that they: ■ make it clear in advertisements and other recruitment literature that such checks will be carried out www.dlapiper.com | 25
    • IMPLEMENTING A SoCIAL MEDIA PoLICYThe implementation of a suitably drafted social media policy will allow an employer to set guidelines on acceptable useof social media and will help to protect against legal liability and reputational damage. However, there is no ‘one sizefits all’. Different employers will have different priorities and risk factors. The important thing is to develop a clearcompany philosophy.❑ The social media policy should be stand alone and ❑ Explain that the company monitors the use of social not part of the IT usage policy or bullying and media in the workplace. Explain how and for what harassment policy, although other relevant policies purposes monitoring is carried out should cross refer to it ❑ Include appropriate restrictions covering:❑ Consider appropriate definitions: the policy needs to ■ employee use of company IT resources make it clear what is and is not covered, but social media is a developing area and the policy should ■ employee use of company or third party take account of possible future developments (eg clients, customers, partners) intellectual property assets and confidential and privileged❑ Remind employees that social media activity in information the workplace is not necessarily private and that the employer can discipline employees for conduct that ■ employee use of third party intellectual property breaches employee policies in the social media arena ■ protection of third party confidentiality and❑ Specify that online conduct harmful to the company privacy can amount to misconduct or in some cases gross ■ prohibition on harassment or bullying of other misconduct employees❑ Address whether access to social media sites is ■ prohibition on discrimination allowed during working hours and if so explain the purpose of allowing access and the company’s level ■ prohibition on negative comments about the of tolerance towards personal use company, its employees, business contacts or competitors❑ Address whether employees’ Twitter, blogging and other profiles are permitted to identify them as an ❑ Make it clear that breach of the policy is a employee of the organisation and if so whether they disciplinary matter which in serious cases may lead should state that all opinions are personal and not to summary dismissal the view of the employer ❑ Explain that employees should raise work related Require appropriate privacy settings to be applied complaints or concerns via the grievance procedure❑ to certain types of accounts. Consider whether to and not on social media sites require employees to have separate personal and work accounts It’s a dynamic policy which means it is not something I would ever put away as a finished or final copy. As social media changes, so will the policy. Head of HR global telecommunications business26 | Knowing your tweet from your trend: keeping pace with social media in the workplace
    • “We have just framed a policy, but it’s not yet been releasedto employees. It regulates the use of social media only in termsof general behaviour we expect, for example it doesn’t baremployees from going on their personal accounts. It will be aseparate policy from any other, distinct from the general IT usagerules as we expect we will have to revisit it again as time goesby. It was formed in partnership between Marketing, HR and ITdepartments. It introduces a set of guidelines of what to do andwhat not to do.”HR Directorconsumer goods sector
    • AboUT DLA PIPERDLA Piper is the truly local, truly global law firm where FoR GENERAL ENQUIRIES, PLEASE CoNTACTeverything matters. With more than 4,200 lawyersbased in 30 countries throughout Asia Pacific, Europe, AUSTRALIAthe Middle East, Africa and the US, we provide ourclients with trusted local expertise and access to seamless Allan Drake-brockmanmultijurisdictional capabilities across a full range of T +61 8 6467 6205services and sectors. allan�drake-brockman@dlapiper�comOur Workplace Relations, Employment and Safety team has ASIAthe breadth of technical know-how and practical experienceto deliver a comprehensive service. Our team includes Pattie Walshlawyers with many years of experience in this dynamic T +852 2103 0840area, as well as skilled industrial relations professionals and pattie�walsh@dlapiper�comhighly regarded opinion leaders who have contributed tolaw-making and significant policy development, nationally EMEA/UKand internationally. David bradley T +44 114 283 3260 david�bradley@dlapiper�com US Michael Sheehan T +1 312 368 7024 michael�sheehan@dlapiper�comIf you have finished with this document, please pass it on to other interested parties or recycle it, thank you.www�dlapiper�comDLA Piper is a global law firm operating through various separate and distinct legal entities.Further details of these entities can be found at www.dlapiper.comCopyright © 2011 DLA Piper. All rights reserved. | OCT11 | 2182207