Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.
Regulation of social media in 
the workplace: 
balancing risks to employers’ 
against employees’ autonomy 
AoIR Conference...
Overview of the research 
 Objectives 
 Background 
 Recruitment Phase 
 Employment Phase 
 Post-Employment Phase 
 ...
Objectives 
 My research aims to: 
 Provide a framework for evaluating tensions arising 
out of social media use in work...
Background 
 Social media use is adversely impacting the employment relationship 
 The pervasive nature of social media ...
Background 
 Employee Tensions 
 Employees consider that their online autonomy is being 
infringed by their employer 
 ...
Employment 
Post employment 
Regulation of 
social media in 
the workplace: 
balancing risks 
to employers’ 
against 
empl...
Emerging issues - 
Recruitment 
• Social Recruitment strategies are outpacing traditional 
recruiting methods 
• United St...
During Employment
O’Keefe v The good Guys [2011] 
• Salesman threatened payroll 
manager over pay dispute on 
FB page 
• Employer issue: vic...
Linfox Australia cases 
Linfox v Stutsel [2012] 
Driver made sexual and 
racial comments about 
managers on his FB page 
•...
Little v Credit corporation 
[2013] 
• E/ee anonymously 
criticised a client on their 
FB page and made sexual 
comments a...
Banerji v Bowles [2013] 
@LaLegale aka 
APS 
Immigration 
worker Michaela 
Banerji 
@LaLegale tweeted ‘critical’ 
comments...
Case EXAMPLES
Emerging issues 
Post-employment 
• Post-employment, uncertainty surrounds who controls 
customer connections made during ...
Common defence raised 
AUTONOMY 
ONLINE 
EU proposals erode internet freedoms 
Published on : 27 December 2011 - 10:35pm |...
Research Question 
How should social media in the 
workplace be regulated to effectively 
balance competing 
employee/empl...
Research Question 
• Identify the legal risks and emerging tensions arising out 
of social media use with regards to the r...
Methodology Phase one 
3 Phases of the Research: 
 The first phase in-depth review and analysis of the 
legal tensions th...
Methodology Phase two 
 Theoretical research supplemented with findings from a 
social media policy audit, will inform a ...
Methodology Phase three 
 The third phase will build on the theoretical 
framework to identify potential reforms to Austr...
Research so far… 
 Phase one 
 Employee online interests: 
• Presentation of the self 
• Anonymity 
• Privacy and free s...
Research so far… 
 Phase two 
• Sample of social media policies collected online (not 
representative sample) 
• Two them...
Research so far… 
 Phase 2 
 Appropriate theoretical framework for technology, work 
and private life exists in Boundary...
Research so far… 
 Phase two 
 Figure 1: A healthy approach to technology and its impact on the 
home/work domains, work...
Research so far… 
 Are employers required to ensure social media policies 
are fair to the employee? 
 Doctrinal legal a...
Exclusions and Limitations 
 Analysis of government or public service social media 
regulation 
 Regulatory responses to...
Questions????
Upcoming SlideShare
Loading in …5
×

AoIR #15 Conference Sth Korea 2014

792 views

Published on

Presentation at the AoIR #15 conference in South Korea October 2014

Published in: Social Media
  • Be the first to comment

AoIR #15 Conference Sth Korea 2014

  1. 1. Regulation of social media in the workplace: balancing risks to employers’ against employees’ autonomy AoIR Conference-South Korea October 2014 Ms Jacinta Buchbach – PhD Candidate j.buchbach@hdr.qut.edu.au
  2. 2. Overview of the research  Objectives  Background  Recruitment Phase  Employment Phase  Post-Employment Phase  Research Question  Methodology  Research so far  Exclusions and Limitations  Questions
  3. 3. Objectives  My research aims to:  Provide a framework for evaluating tensions arising out of social media use in workplace  Provide clear recommendations for law reform and business practice  Improve certainty and safeguard employee legitimate interests and employers mitigation of risk
  4. 4. Background  Social media use is adversely impacting the employment relationship  The pervasive nature of social media is blurring the boundaries of private and public space  Unresolved conflict in the law between employee ‘autonomy’ and business managing their risk  Conflict can arise in any of the three phases of the employment relationship: A. Recruitment B. Employment C. Post-Employment
  5. 5. Background  Employee Tensions  Employees consider that their online autonomy is being infringed by their employer  Employer Tensions • Increased legal liability for employers which can adversely affect business reputation  No Social Media regulation or industry guidelines  Social media policies regulate employee use  Do they balance competing tensions?
  6. 6. Employment Post employment Regulation of social media in the workplace: balancing risks to employers’ against employees’ autonomy
  7. 7. Emerging issues - Recruitment • Social Recruitment strategies are outpacing traditional recruiting methods • United States study found 45% of hiring managers are screening applicants • Mining of personal data online creating legal problems:  Privacy, ‘cyber-vetting’ and employer ‘friending’  Discrimination of protected attributes disclosed  Predictive analytics for person-organisation ‘fit’
  8. 8. During Employment
  9. 9. O’Keefe v The good Guys [2011] • Salesman threatened payroll manager over pay dispute on FB page • Employer issue: vicariously liable sexual harassment, breach employee handbook • Employee issue: Privacy issues as FB page did not identify his employer and comments not intended for her to see. Fellow employees were his friends and saw the post Salesman
  10. 10. Linfox Australia cases Linfox v Stutsel [2012] Driver made sexual and racial comments about managers on his FB page • E/er issue: Vicarious Liability • E/ee issue: Free speech • Commission: within right to free speech, though distasteful, not hurtful NO SM POLICY Pearson v Linfox [2014] Driver committed a whole range of conduct including ‘refused to sign’ to acknowledge training in SM Policy • E/er issue: breach of contract • E/ee issue: policy sought to ‘constrain’ his actions off work and breach of various individual rights • Commission: not Commission’s role to determine if policy in breach of individual rights
  11. 11. Little v Credit corporation [2013] • E/ee anonymously criticised a client on their FB page and made sexual comments about a new e/ee on his FB page • E/er issue: breach of contract/vicarious liability/misconduct • E/ee issue: anonymous FB account, but e/ees were friends. ‘Private’ and free speech • Commission: entitled to an opinion, but not to ‘the world at large’ which reflects badly on employer FB Profile: Work as: a ‘Dinosaur Wrangler’ Employer: ‘Jurassic Park’
  12. 12. Banerji v Bowles [2013] @LaLegale aka APS Immigration worker Michaela Banerji @LaLegale tweeted ‘critical’ comments about immigration detention policies • Investigators revealed B was twitter a/c owner • APS issue: Code of conduct breach • B issue: implied constitutional right to express political opinion • Fed Circuit Crt: right limited, if did exist, no licence to breach contract • Fed Govt: B left APS and settlement was reached privately
  13. 13. Case EXAMPLES
  14. 14. Emerging issues Post-employment • Post-employment, uncertainty surrounds who controls customer connections made during the course of employment • Why? Valuable interest in private online branding which clashes with goodwill in business customers • Unsettled law in United States-proprietary ownership rights in Eagle v Morgan compare United Kingdom which draws upon the law of Agency (Fairstar v Adkins) and confidential information (Whitmar v Gamage) • In Australia, intangible information is not ‘property’ • But employer CONTROL through confidential information and restraint of trade clauses in contract OR SOCIAL MEDIA POLICY
  15. 15. Common defence raised AUTONOMY ONLINE EU proposals erode internet freedoms Published on : 27 December 2011 - 10:35pm | By Willemien Groot (© Cartoon movement)
  16. 16. Research Question How should social media in the workplace be regulated to effectively balance competing employee/employer legal interests?
  17. 17. Research Question • Identify the legal risks and emerging tensions arising out of social media use with regards to the recruitment, employment and post-employment stages • Critically analyse the current law and business practice in managing risk and striking an appropriate balance between competing employee and employer interests • Identify potential avenues for reform of Australian law with regard to developments in the United States and United Kingdom
  18. 18. Methodology Phase one 3 Phases of the Research:  The first phase in-depth review and analysis of the legal tensions that exist in the employment relationship with the identification of potential rights of employees and employer risk factors
  19. 19. Methodology Phase two  Theoretical research supplemented with findings from a social media policy audit, will inform a desirable balance to regulate and ease tensions in the employment relationship  The conceptual framework will focus on the economic interests of employers in managing risk and business reputation, on the one hand, and conceptions of autonomy interests of employees on the other  Boundary theory reflects the relationship between an individual, work and technology
  20. 20. Methodology Phase three  The third phase will build on the theoretical framework to identify potential reforms to Australian law and best practice. These will be informed by an analysis of doctrinal developments in other common law jurisdictions (predominantly the United Kingdom and the United States)
  21. 21. Research so far…  Phase one  Employee online interests: • Presentation of the self • Anonymity • Privacy and free speech  Employer online interests: • Protect business reputation • Protect other employees against online bullying and harrassment • Comply with specific guidelines in monitoring their online brand
  22. 22. Research so far…  Phase two • Sample of social media policies collected online (not representative sample) • Two themes in policies: Clauses either too restrictive and/or too broad  Too restrictive • Work Disclaimers impact an individual’s presentation of the self and their freedom of anonymity  Too broad • Clauses sanction individuals from negative talk about work which potentially chills workplace rights (eg right to make complaint about working conditions)  OUTCOME? CONFLICT AND IMPACTS WORK-LIFE BALANCE
  23. 23. Research so far…  Phase 2  Appropriate theoretical framework for technology, work and private life exists in Boundary Theory (Nippert-Eng) • Work-life conflict can be minimised utilising boundaries in creating and maintaining more or less distinct ‘territories of the self’ • Depends upon an individual’s preference for segmentation and integration of work and the permeability and flexibility of these boundaries • Communicative tactics used to negotiate work flexibility, boundary violations and employer ‘reciprocity’
  24. 24. Research so far…  Phase two  Figure 1: A healthy approach to technology and its impact on the home/work domains, work, and people. (diagram adapted from Kristopher Thomas in Workplace Technology and the Creation of Boundaries: The Role of VHRD in a 24/7 Work Environment)
  25. 25. Research so far…  Are employers required to ensure social media policies are fair to the employee?  Doctrinal legal analysis  Investigation into implied common law obligations of employee contracts  Two implied obligations • Mutual Trust and Confidence • Good Faith a remedy for employee  Common law obligation for employees to obey lawful directions
  26. 26. Exclusions and Limitations  Analysis of government or public service social media regulation  Regulatory responses to cybercrime  Big Data and Privacy Regulation  Analysis of external regulatory corporate social media compliance  Cyber-bullying legislation  ‘Property rights’ in social media
  27. 27. Questions????

×