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HR may consider restricting or banning access to social media at work as well as other websites unrelated to their business. Here's the full guide for employers.

In the age of social media, Jezamine Fewins, Partner, Stephenson Harwood, shares the common issues and steps HR can put in place to safeguard the employer.

Job screening

HR may sometimes be tempted to conduct informal screening of job applicants by carrying out searches over the internet. The Personal Data (Privacy) Ordinance requires that before any background checks are carried out, job applicants are informed of the checks which prospective hires may be subjected to and to ensure that they have consented to such checks before the prospective employer carries them out.

The consent which must be obtained from the job candidate must be expressly and voluntarily given, otherwise the personal data collected may be deemed an unfair collection of personal data.

Therefore, to protect themselves, HR should ensure that they have a document with which they ask prospective hires to sign indicating that they expressly consent to such checks.

Monitoring employees

Some employers may check up on their employees during their periods of sick leave to ascertain if their absences from work are genuine. Employers could visit an employee’s Facebook page to see if they are at home or in fact spending the day at the beach.

Employers may choose to monitor their employees in other ways such as checking the sites which they have visited during office hours to monitor their productivity. Such actions are permissible only where there is no collection of personal data such as where an employee’s web browser history is being viewed.

Employees’ use of social media

For most employers, the main risks associated with the use of social media in the workplace stems from their employees using social media at work in an improper manner.

Disclosure of confidential information and trade secrets

Social media by its nature provides an open forum for its users to exchange and share information. When employees post information relating to their day at work, there is always a risk that an employer’s confidential information or trade secrets are disclosed to the world.

The risks are even greater where for example, the employer owes fiduciary duties to its clients and any disclosure by an employee on social media will result in the employer being in breach of its fiduciary duties and subject to regulatory action.

Discrimination, harassment and defamation

Where comments posted by an employee on social media are directed at colleagues or clients of the employer, they could amount to unlawful discrimination or harassment if such comments relate to a protected attribute such as disability, race and sex.

Where comments are defamatory in nature and targeted at a particular person, the employee may also be liable for defamation.

An employer can be held liable – vicariously liable – for the acts of its employees if a victim can successfully demonstrate that such comments were made by the employee “in the course of their employment”.

The courts adopt a wide test for determining whether acts carried out by an employee are done in the “in the course of their employment”. This is so even if the comments are posted by the employee out of office hours and using their own personal devices as opposed to company provided equipment.

Reputational damage

The biggest concern of any employer regarding their employees’ improper use of social media at work is the resultant damage that may be caused to the company’s reputation. Even if posts can be removed quickly, once the news spreads the harm suffered to a company’s reputation is often irreparable, particularly in a small market like Hong Kong.

National Security Law

The very vague drafting of the National Security Law has many employers on edge. They are concerned that they may be held vicariously liable for the acts of their employees. An employee who posts photographs on social media waving a pro-independence flag or who donates money through a crowdfunding site to a cause supporting Hong Kong independence in their lunch hour using company equipment may be charged with secession and collusion with a foreign country or external elements to endanger national security respectively.

Whether an employer may also be charged for offences related to an employee acts remains to be seen. However, employers should ensure that they are able to show that they have taken all reasonable steps to prevent the employee from doing such acts.

How employers can protect themselves

HR may consider restricting or banning access to social media at work as well as other websites unrelated to their business. Where an outright ban is not feasible, the employer should ensure that employees’ behaviour can be regulated through its internal policies.

Ensuring that the company has a code of conduct and a social media policy in place would be a good start.

Employers should ensure their employees familiarise themselves with the content of their policies and give training on the same with a paper trail which may be used as evidence in the event that disciplinary action needs to be taken at a future date.

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