SEO, Marketing & Mindset Stuff

I want to discuss a pretty grey area of the social media ‘bubble’, and that’s employment law. As a business, or an employee, are you protecting yourself correctly? Having attended a seminar this morning that covered this topic, I want to share my notes with you and hopefully stir up some questions. I think this is relevant to us digital marketers, and something we should become more aware of.

The scenario is pretty straightforward – social media is at the stage where it’s literally embroidered into our daily lives as people. As most of us will know, the benefits of our employees using social media in moderation is potentially huge. We have X number of employees consistently increasing the level of communication with clients, spreading our company name about, and ultimately enhancing our reputation as a business. It makes sense to allow a little bit of freedom, but protecting yourself is crucial.

I’ll begin with the well-known Discrimination Act. It’s true that anti-discrimination laws can hold employers “vicariously” liable for discrimination by their employees. If comments are made by an employee(s) against another employee that are deemed harassment on the grounds of protected characteristics (e.g. sex, race, religion), liability can arise for the employer, whether or not the employee is using the employer’s equipment to publish those comments.

Now as an employer, you might contend that the employee was not acting in the course of employment, but tribunals apply a very wide test to this concept. Whether or not the employee was not physically at work, or acting under the instruction from the employer is unlikely to be sufficient in defeating a claim. So how do you protect yourself?

• By taking reasonable steps to prevent the harassment – utilising policies and training to define the acceptable online behaviour, even outside of the workplace, is kept appropriate. Even policies do not offer full protection, so this is where proper training instilled at the induction stage is key to protecting yourself as an employer. Simply having a policy in place to cover all social networking activity isn’t sufficient enough to show that you’ve taken all reasonably practicable steps to prevent harassment or discrimination. Train, train, train!

Another common problem you might face is with confidential information. As an employer, you’re exposed to the risk of confidential information about your business, or your clients, being published online. For example:

• Competitors could gain access to that information
• Customers or clients might be able to view that information online
• Your company could be in breach of a confidentiality agreement between a third-party client or customer

To protect against this, employment contracts should be updated to specifically address this issue. It’s important that this is covered by a contract, and not a policy, because it may be necessary to enforce the terms of the confidentiality provision against the employee, through the courts. For this reason, is must be part of the employee’s contract.

Take, for example, LinkedIn where employees are sometimes encouraged to connect with clients. Once connected through LinkedIn, who owns the data? If clients are added to the private profile of an employee, then even if they leave the contacts still exist in their ownership. This opens up the possibility of that client soliciting business away from your company.

The perfect industry for this example; recruitment. An industry where agents are encouraged to connect with clients on networks such as LinkedIn.

In the case that the database that the employee obtains from the employer is confidential (and this point covered in the employment contract), then ultimately wherever they access that client information from still remains property of the employer. In these circumstances, the contact list could not be copied or removed in their entirety by the employee for use outside of their employment or after their employment came to an end.

The last scenario is with the Data Protection Act (DPA) and what it covers. With access to personal details becoming easier through social networks (and spying!), an employer could be inclined to make a decision on a job candidate based on information disclosed on a social network ‘profile’. For example, the candidate might not specifically disclose information on their application and the employer finds out by way of the internet. E.g. that they are gay, or have a strict religious or political stance. If this data is accessed and has bearing on the recruitment decision, then this would amount to “sensitive” personal data being summoned and a case against the employer would present a tricky situation.

The protection for employees in this regard requires employers to obtain explicit consent to access that data. In order to comply with the DPA, the employer must either:

1. Have the employees consent to accessing that data.
2. Meet another part of the DPA criteria, the most common being that processing of the data is “necessary to the performance of a contract to which the employee is a party”. This would allow an employer to process personal data in order to conform to their contract of employment.

The example would be that if two identical candidates went for a job, but you found out that one was guilty of a poor attendance rate, or that their Facebook photos suggested that openly discuss their drug habits online, how could you shape your rejection letter if they contested it? After all, that information is personal and wasn’t volunteered. Therefore as an employer, you’d be in breach of the DPA if you couldn’t reasonably back-up your decision to choose the other candidate.

Ultimately what I got from this was that you should avoid bringing any personal reasons into your decision, and if it does present a possible problem, then to protect yourself on the grounds that the other candidate was simply better. This presents a much more difficult case for the aggrieved candidate to argue, in court or not.

The points above hopefully open up your eyes to what can happen without the correct policies and procedures in place. I’m not a lawyer, so please don’t only rely on what I state here. Instead, use resources such as the Employment Practices Data Protection Code (http://ico.gov.uk) to inform, and seek professional legal advice where necessary.

As an online marketer, I think we benefit from becoming aware of these laws. Not only are we exposed on a daily basis to social networks, but we work with clients who are. As such, we need to become more informed about the consequences of certain activity, and will increase our value to the client by doing so.