The advent of social media in the past two decades has made much of our private lives visible to the public. One unintended side effect of this has been that regular employees have increasingly become unwilling public representatives of their employers.

william iven 19844 300x199 - Managing off-the-clock employee social media misconduct

A single viral tweet by an opinionated individual can—and often does—result in a public relations nightmare for their employer. In response, businesses have increasingly begun to attempt to control employee behaviour online. This has been met with criticism and legal challenges, as workers seek to protect their ability to express themselves freely. Businesses, on the other hand, have fought back, justifying the restrictions as necessary to protect their interests. While disciplinary action, including dismissal, are sometimes necessary, though, employers also have other, more traditional tools to discourage unprofessional behaviour.

Businesses have limited power to discipline employees

While businesses can write whatever they like into their employee code of conduct, not all rules are actually enforceable. Businesses do, of course, have well-established rights to discipline employees for some types of online behaviour, but others constitute gray areas. The legal standard for justifying disciplinary action, including summary dismissal, is “gross misconduct”, which involves activities that directly reflect on the employer, particularly defamation, harassment, or the disclosure of confidential or proprietary information. Depending on the employer, this can now also include political speech.

What businesses can and can’t do about political expression

On August 7, the High Court of Australia clarified the controversial issue of disciplining an employee for their political speech by ruling against Michaela Banjeri’s unfair dismissal suit. Ms. Banjeri had sued her former employer, the Australian Public Service, for violating her right to free political communication by unfairly dismissing her for her Twitter activity. The High Court ruled against her, stating that the right to free political communication is not like similar-sounding rights in the USA and the UK, and “extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the constitution.”

This does not mean, however, that all businesses can now prevent employees from expressing unpopular political views online. Rather, employers who rely on their employees’ political neutrality to function, such as government agencies, can do so in some cases.

How to discipline employees who cross the line on social media

Restricting an employee’s activities when they’re off the clock is inherently a touchy subject. Nobody wants to feel like their work is following them home, or looking over their shoulder 24 hours a day. Because of this, it’s important not to be too heavy handed when it comes to cracking down on online employee behaviour. Moreover, businesses who are overeager with regard to sacking offenders might quickly find themselves faced with costly legal trouble.

Judging the severity of an employee’s misconduct

Online transgressions can’t always be considered grounds for dismissal, even if the conduct itself is damning. The real and potential impacts on the business need to be considered, and should be taken into account when coming up with an appropriate disciplinary response. Some important factors to consider are:

●     Whether the offending content was posted publicly, or restricted to a more limited audience

●     Whether the employee’s relationship to the employer is easily identifiable online

●     Whether the conduct is inconsistent with the employee’s responsibilities at work.

Behaviour that seriously impacts the employer’s reputation, or that makes it clear that the employee lacks the values necessary to do their job, can justify harsh punishments, such as summary dismissal. Employee misconduct that is limited in scope, that doesn’t actually reflect on the employee’s ability to perform their duties, or that can’t doesn’t meaningfully reflect on the employer, on the other hand, is better handled more gently.

Encourage employees to behave responsibly

While businesses can’t always take disciplinary measures against employees who exhibit unfortunate behaviour on social media off the clock, they are not powerless. An employee code of conduct is a powerful tool for business leaders, because it outlines what is expected of employees who want to be successful at their company. Those who fail to meet those standards will fail to find success, even without explicit disciplinary measures. After all, the way an employee represents themselves online can and should be considered when issuing raises or promotions.

Leaders need to be accountable to a higher standard than rank and file employees, and are also, by default, considered to represent their employer to a greater degree than their subordinates. By balancing this type of soft power with more explicit disciplinary measures when necessary, businesses have all the tools they need to incentivise employees to act with the appropriate degree of professionalism online.

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