Social media and employers

Statements made on social media may either be publicly available on some sites or private and unavailable on others; yet all are searchable. And in cases where you can be identified as the content source, your employer can see what you’ve posted and use it to judge your employment relationship.

How much can you freely express yourself on social media? The main rule is that it’s illegal to make defamatory or criminal statements about other people. Let’s take a closer look at other types of expressions made on social media.

Where work and leisure cross

Some people use social media during working hours, utilizing their employer’s IT equipment while doing so. For instance, some employers encourage their employees to stay in touch with clients via social media. Others use social media only outside of their workplace and working hours. The manner in which work schedules are organized, with home offices and other forms of remote work, creates a situation where it’s not always easy to decide when you’re at work and when you’re not. In practice, many people perform work in the evenings and during weekends; additionally, many people have particularly independent jobs or management positions with no fixed work schedules.

As a general rule, your employer’s access to regulate your activities during your contractual working hours and your workplace is greater than it is during your leisure time. This means that these same rules don’t apply to leisure time; yet in this case the confidentiality clauses in your employment contract and duty of loyalty set boundaries. A duty of loyalty is normally regulated in the employment contract in either a separate duty of confidentiality clause or a separate ”non-disclosure agreement”. Apart from whether or not this has been agreed upon in writing, you still have a voluntary duty of loyalty in the employment relationship that you must consider before posting anything on social media.

Boundaries: How far can I go?

An employer has the right to organize, lead and monitor their employee’s work and activity within an objective norm. This right stands apart from people’s right to have freedom of expression – both at work and outside of it. At the same time, an employee’s freedom of expression must be seen in connection with their duty of loyalty. In one context a duty of loyalty can for example mean that you’re not allowed to write about your employer in a negative way or pass on information about internal company matters. This rule especially applies to information that can be described as a trade secret. While what can be classified as “secret” in a particular situation may be somewhat unclear, it certainly includes internal information that an employer wants to be kept confidential. Pricing strategies, technical solutions and company client lists are examples of trade secrets.

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A trade-off must also be made in relation to when and where communication on social media takes place. A message posted publicly that can clearly damage an employer’s interests is usually considered as having violated the duty of loyalty. Seen in this way, it may be imagined that a duty of loyalty in this regard applies not only to a work schedule but is also the norm for defining what we think of as good manners.

If content is posted in a private network, it’s intended only for this internal space. If an employer then actively searches for information on your profile in order to find «suspicious content», they’re usually going too far. In this situation an employee’s personal and integrity protections state that an employer can’t normally form any opinion about what they find. However, it’s important to be aware of the fact that an employer may have the right to demand access to all computer tools at your disposal. A typical case may involve their having a justifiable suspicion that the use of this equipment may result in a serious violation of your employment contract. It is of course your employer who must prove that this situation actually exists.

Use your common sense

Many people use search tools in recruiting processes. Simply writing your name in a search engine will generate a lot of hits; a social media user’s profile and home page will come up. So even if you operate in private social media groups, it’s possible that your information may be shared with others. This information may give a potential employer an impression of whether or not you’re suitable for working at their company.

Both The Working Environment Act and The Equality and Discrimination Act prohibit discrimination, including during the hiring process. For example, an employer can’t gather information about potential employee’s political views or union membership when recruiting them. Yet this same information might be available to any interested reader who conducts a simple online search. This is why there’s little reason to post this kind of information yourself; but it of course doesn’t mean that you should refrain from participating in societal debates, either. At the same time, it’s wise to think carefully about your statements before posting them online.

It’s also worth noting that the Norwegian Press Complaints Commission has stated the following about Facebook: «Users must therefore be aware that information that is published there may be made publicly available. Facebook is considered to be a mass medium from which, in principle, quotes may be taken” (PFU-sak 030-10). In other words, your Facebook posts may be broadcast to a larger audience than you originally intended.

It’s quite common for an employer to run an active search on social media during the recruiting process. The search results might mean that you won’t get called for an interview, or that you’ll be called in to a meeting because your employer has “received a warning” about your behavior. A good piece of advice is therefore to be critical about what you’re planning on posting. If you’re unsure at all on this point, you shouldn’t publish your content in its current form. You should be especially careful if you want to post something about private information or collegial relationships.

Make rules

To avoid uncertainty among both employees and managers, our advice is to have the employer and union representative(s) jointly create a few basic principles stating how employees are to use social media. Also, internal procedures should be created outlining the employer’s right to access employees’ workplace computers while maintaining employees’ right to privacy and predictability. Please note that you can always demand that your company union representative be present during any monitoring session; and you can always contact Tekna’s Legal Department for advice at [email protected].