Business Regulation » Personal or public? Navigating social media within the workplace

Personal or public? Navigating social media within the workplace

How can employers remain fair when managing employees in an online world where the distinction between personal and private communication is being eroded?

Personal or public? Navigating social media within the workplace

Stories of social media misconduct are commonplace, spanning all sectors and all levels of seniority. With the rapid development of social media and the consequent blurring of lines between work and private life, it is no surprise that new challenges will continue to emerge for businesses and individuals who are subject to investigations into their conduct online.

Managing employees online

Remaining careful on social media when on a work device or within a professional setting should be a given. However, especially for those in high-profile positions, the distinction between using social media in a personal or professional capacity is of less and less consequence. Privacy in the social media era is in short supply, and even historic posts made by individuals can be presented as disciplinary action-worthy evidence of prejudice or bigotry. Just earlier this month, five cricketers including Azeem Rafiq and Danni Wyatt were reprimanded by the England and Wales Cricket Board for historical posts on social media, relating to ‘blackface’, racism, and antisemitism.

In some cases, historic posts may surface to little effect, only to later resurface and create issues. A photo of Adam Rapoport, editor of Bon Appétit magazine, originally taken in 2013, captured him and his wife pretending to be Puerto Rican – shared by his wife on her social media account. While the post had been circulated on social media before, the picture was brought back to public attention in 2020 following criticism of how the magazine treated employees of colour. Rapoport resigned hours later.

Although stories (and cases) about alleged misconduct on social media posts are going nowhere (take for example the number of recent cases regarding opinions being expressed about gender identity), it is not only the actions of employees on personal social media platforms with which employers are presently concerned. In fact, with the transformation of our work communications away from in-person meetings and even email toward other platforms – instant messaging systems, Teams, Zoom – the real headache for HR and legal teams rests on employees’ use of work social communication channels. The problems with this are well known: virtual interaction removes some of the restraint people feel bound by when speaking in-person or even via email leading to allegations of misconduct such as bullying and harassment. In turn, internal investigations and litigation now regularly involve scrutinising, and in litigation disclosing, chats between employees on Slack and other instant messaging systems, as well as Whatsapp.

Regulated industries

The financial world has been subject to much recent scrutiny over usage of private messaging apps, most notably WhatsApp. Conducting business via WhatsApp, especially when using a personal account/profile, often gives rise to the (incorrect) assumption that exchanges will remain confidential. The Financial Conduct Authority has not only stepped-up investigations into regulated firms and individuals, asking more questions about the usage of private messaging services, but the regulator has also been willing to take regulatory action in cases where social platforms have been used to arrange deals or provide investment advice.

In the US, regulators have already handed out over $2bn in total penalties. Again, the pandemic has been a catalyst for this, with remote working encouraging a new culture of alternative messaging, breaking down certain levels of formality. One particularly dangerous trend, that readers will likely be conscious of, is the sharing of potentially sensitive information via apps that are either encrypted, or unmonitored – the compliance risks inherent in such activity are significant for businesses, particularly within the professional services sector.

Other regulators are similarly focussing on the personal use of social media. The Bar Standards Board (BSB), for instance, undertook a consultation of ‘non-professional conduct’, stating in their report that there may be cases where the BSB would act on private messages of barristers, including if the barrister has sent ‘seriously offensive private messages’ on LinkedIn, or had frequently tweeted about gender critical views or misgendered/threatened a transgender woman challenging their views. Similarly, the ICAEW has seen an increase in complaints about members’ activities on social media, and issued new guidance diving into poor conduct on social media. As organisations seek to clarify their social media guidance, the overlap between the personal and the private has become increasingly unclear.

Investigations – balancing reputation and truth

How, then, can businesses remain balanced when investigating social media conduct? At a very basic level, this comes down to policy. Clarity from the top will help employees to navigate social media in business communications, but will also, in turn, help employers to protect confidential information, ensure data security, and provide a guide to refer to when potential misconduct occurs.

Reputation is the golden thread running through the question of social media investigations – the reputation of individuals, and of the business. Launching an investigation into an individual is, in and of itself, a potentially damaging action, bearing in mind that often reputational damage cannot be undone if an individual is found to be innocent of wrongdoing. For this reason, allegations made anonymously (often due to a fear of repercussions), should be weighed carefully. However, employees should remember that, especially for the business, not acting, and ignoring allegations, carries a cultural and reputational risk equal to that posed to the individual.

Navigating social media within the workplace requires businesses to be prepared. Issuing guidance in advance, particularly about communications that open up the business to potential regulatory action, will help ensure greater accountability and minimise risk. Workplace culture has a growing commercial value, and with far greater scrutiny than ever before, a ‘light-touch’ approach may no longer cut it.

The stakes are high, and any investigations that do occur should be handled with tact and confidentiality and involve in-depth planning and thoroughness of approach.

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