Social media and the employment relationship

Social media sites such as Facebook, Twitter, Instagram, Linkedin and many others have become increasingly popular not only for social purposes, but also as a tool to assist in seeking employment opportunities and business networking. There is however a great misapprehension regarding the consequences and hidden dangers for the online socialite.

There appears to be a growing trend among businesses to utilise various available social sites for background checks and screening of potential and existing employees. Many employment agencies also include social media screening as part of their background verification of potential employment candidates.

The South African approach to the use of social media in the employment arena is still in its embryotic stage with limited guidance by our courts. The trend for employers to keep an eye on their employees’ social media interactions will however in time determine both parties’ rights and obligations. In the recent court decision of Experia South Africa vs Haynes, the Judge relied on certain information found on an ex-employee’s Linkedin online account as evidence that this employee interacted with his previous employer’s clients in prohibition of a restraint of trade agreement. It has therefore become practice to utilise information contained on social media sites to support legal cases.

The following guidelines can help to determine online posts that should be avoided at all times:

  • inappropriate, negative, inaccurate or insulting statements pertaining to your superior, colleague, company or any other point directly or indirectly relating to your working environment;
  • posts or tags relating to inappropriate pictures or remarks that conflicts with your employer’s vision, mission and/or policies;
  • posting status updates or photos whilst on sick leave;
  • posting confidential or sensitive information relating to your company, its product and/or its clients;
  • if you re-tweet or share someone else’s posts or pictures, as the case may be and as described above, you will be responsible for its publication.

The above-mentioned circumstances may give your employer grounds to accuse you of misconduct and/or insubordination which in turn may lead to disciplinary action and even dismissal from employment.

The following are recommended to properly manage your social media platforms:

  • be conversant with your employer’s social media policies which may be in place to regulate these platforms;
  • make sure your privacy settings restrict access to your profile and content;
  • monitor your profiles regularly to make certain that unwanted posts and pictures not in line with your employer’s policies are removed.

It should be borne in mind that the same principles, as alluded to above, will apply not only to junior employees but to senior management as well. It might well be the case that a manager or director (even an owner) of a business entity may, through his or her improper conduct on social media, violate the rights of an employee which can give rise to civil or even criminal liability. The name and reputation of the employer or employee is therefore ultimately the determining factor to consider before deciding what to publish on social media sites, which publication will also effect a person’s right to privacy as constitutionally protected.

Employers should take note of the hidden dangers associated with social media sites and the unregulated use thereof by employees and should obtain legal advice to assist in appropriate action and policies in this regard. On the other hand, employees should also be aware of their personal rights in this regard and legal assistance should be requested in the event that these rights are infringed upon.

Francois van Zyl