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Can my boss tell me what to post on social media?

An employer does not have the right to demand any of these things – they can't insist that you promote their company on your private social media channels, and they can't stop you from, in your own time, developing networks with whomever you like.

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Written by Catherine Talin-Legal Practitioner and Legal writer

The first week

You arrive fresh and excited for the first day of your new job. During your induction, you’re asked to sign various documents including a loosely worded guideline about your new employer’s social media expectations. You don’t get to see your new employer’s social media policy, but once you settle in, you’re asked by the firm’s business development team to write a professional profile about yourself for the company website. Your employer regularly writes legal alerts about a variety of issues directly related to marketing the company brand. They encourage you to post them on your own personal LinkedIn profile. “We’d like you to use this on your LinkedIn account, Facebook or any other social media you have,” they say. This seems like an innocent request and you happily comply, eager to make a good impression with your new employer. And then you receive a request from the company to be added to your personal professional LinkedIn profile. They suggest that you might want to connect with as many legal professional staff within the firm as possible.

Entrapment – or is it reasonable employment practice?

You feel a little uneasy and so you consider your options, looking with a cool head at your knowledge of this area of law. Is it entrapment? Is it an underhand way of monitoring your industry activity on your LinkedIn profile? Is it an invasion of your privacy?

All these questions are perfectly valid for any employee, and they should be aware of their rights when it comes to their legal obligations to their employer. They should also be careful of their own rights and make sure that their employer – new or otherwise – is not overstepping the mark. The issue here is whether your employer has the right to dictate your activity on social media, outside of your time spent at work. Another pertinent consideration is whether they have a right to dictate your professional relationships outside of work, for example, on your LinkedIn professional profile.

What the law says

An employer does not have the right to demand any of these things – they can’t insist that you promote their company on your private social media channels, and they can’t stop you from, in your own time, developing networks with whomever you like.

This basic guideline is subject to the following circumstances:

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Any clauses in your contract of employment that relate to ‘social media’ whereby you have specifically agreed to not undertake any social media activity without the express consent of your employer That you do not violate any local, state or federal laws or regulations That you only comment in a way that is non-defamatory and you avoid hostile comments that could damage your professional reputation or that of your employer. This all seems fairly obvious, but the take-home message is beware of what you sign, especially in those first honeymoon weeks after you start a new job.

It’s all about reputation

Yes, your employer’s reputation is important, but be aware that the circumstances in which an employee can be dismissed as a result of a social media post considered offensive by their employer are far more limited than many people believe. Firstly, the online comment in question must have a relevant connection to the employment, and secondly, it must be shown to have caused some form of reputational harm to the employer. Whether or not the employer likes the post is irrelevant, although of course, they may decide that you don’t quite fit the company after all, and if you are within six months of starting your employment arrangement, they are within their rights to ‘let you go’. So, going back to the narrative with which I started this story, if you find yourself being called to explain your ‘likes’ on your own social media or online professional profile (e.g. LinkedIn), especially if they were made outside of working hours on your own computer/phone/tablet, you know that your employer is transgressing boundaries. They are, in effect, invading your human rights. Some employers actually insist that their employees only post content on their own private LinkedIn profiles that promote the business. This is clearly in breach of industrial law.

Remedies for the employer

Most people, even highly educated legal professionals, believe that they can comment online whatever comes to mind because it is “private” and “between friends”. However, case law demonstrates that it does not matter if such postings are made outside of working hours or with a non-work computer or device. Such activity becomes a workplace issue if there is a real and demonstrated connection between the workplace and the activity in question.

Employers should consider the following protective measures:

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Make it crystal clear to your employees what the firm considers to be appropriate and inappropriate uses of social networking media in relation to the workplace Write and promote social media and/or networking policies making it clear that online comments can affect employment Ensure all employees, including new starters, are aware of your workplace policy and have signed their agreement.

Where private professional interests may get you in trouble

Let’s say you work in a law firm that specialises in family law matters. Can you make comments or even write a blog on legal matters outside of your area of employment? Can you show your appreciation for an article online by hitting the ‘like’ button, or comment on something unrelated to family law but within your area of personal interest, for example, international developments in electric car technology?

Again, the answer comes back to what you have signed. If your signed employment contractual agreement with your employer has a detailed section on social media use, or if you have signed your agreement to the company’s social media policy, it depends on how detailed it is and what exactly it says. But, if your employer’s social media policy is vague and non-specific, it will also be unenforceable in law. And so, we come back to the question I first raised, about whether your employer has the right to dictate what you do in your personal life outside of your paid work hours.

In law, this depends on your duties as an employee of the company. Ask yourself whether your duties (and your contract) require you to present yourself in a ‘professional manner’ 24 hours a day?

And if so, who determines what exactly a professional manner means?

For example, can you go to a weekend footy match and have a beer? Is that within the scope of your persona as a legal professional? What if you have a few too many and get a little untidy? Will this affect your employment or your employer’s professional reputation?

And what if you’re a legal professional in a small town? Does your employer expect that 24/7, you’re representing the business? And if so, are they paying you for it?

By Catherine Taplin LLB, LL.M

linkedin.com - Can your employer really control your social media presence? - LinkedIn

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