SNS at the workplace: risk management and HR strategy
Recently, companies have faced difficult situations from their employees or their partner firms’ employees posting controversial text or photos on social network service (SNS) which can result in serious problems for their business. These types of situations reveal that individual actions can jeopardize an entire company and companies need to know how to deal with employees’ use of SNS appropriately. With an aim to support companies towards a systematic and proactive response to this issue, the KEF would like to raise awareness of some good practices used by HR departments at global companies.
- Using preemptive action to minimize risk of SNS activity on business
If a company finds itself at the center of social controversy and serious damage to its business due to a misuse of SNS by its employees or its partner firm’s employees, it is virtually impossible to return things back to normal and dispel all rumors which may have been spread. Preventive action is therefore essential to minimizing potential risk to business.
1.1. Written Agreement
First, companies can require their employees to submit a written agreement on SNS usage. Companies are allowed to require such written agreements from their employees to perform their duties in good faith. However, these agreements should be confined to appropriately protecting company interests.
Different and individual agreements are recommended for employees according to their various duties or positions, and should be required from all types of employees including temporary, part-time and directly-hired employees.
1.2. Notification of Employee Duty & Consequent Disciplinary Action
It is also advisable to clearly stipulate company SNS policies in the rules of employment, saying that it is an employee duty to use SNS appropriately and any use against the policies or resulting in damage to business is subject to disciplinary and/or legal action. However, keep in mind the following limitations: ▲ Adding new causes for disciplinary action in the rules of employment can be considered an ‘unfavorable change’ to those rules, ▲ If it has been decided that only the collective agreement shall regulate disciplinary action (exclusion clause), any clauses related to disciplinary action in the rules of employment will be ineffective. If it is not easy to add new clauses for disciplinary actions to the rules of employment, other existing clauses which are relevant to SNS issues can be applicable.
Another important thing is to make employees fully aware of the entire relevant policy and regulations. For this, regular training is needed on responsible use of SNS in order to facilitate understanding of company SNS policies and disciplinary action. This will allow companies to reduce business risk, and help employees become more aware of ethical SNS use and avoid disciplinary action that will come from irresponsible online behavior.
1.3. SNS Usage Policy & Guidelines
Many global companies such as IBM, Intel and Coca-Cola distribute to their employees and stakeholders their SNS user guidelines containing company SNS policies, as well as post their SNS use policies on their websites. Internally, such measures help to raise employee awareness of the issues, reduce risk to business, and build up a corporate image of wisely and proactively handling social trends and changes.
The guidelines provide employees with knowledge of internal regulations while SNS policy aims to establish the company’s view and position on SNS media to the public. The guidelines and policy can be separate documents or one document covering both.
For SNS user guidelines, it is important to clearly state their validity and effect on the employees. Ambiguity will likely result in a loss of impact on employees and in legal disputes surrounding employee privacy. According to the nature of business, the company needs to decide whether the guidelines are meant to be regulatory or simply an educational tool on employee SNS usage.
For example, IBM Japan requires its employees to comply with its ‘SNS User Guidelines’ in employment contracts while HP Japan considers the guidelines as reminders of how its internal regulations apply to SNS media use.
Policies on SNS use can show the public the company’s view of employee use of SNS and its willingness to deal with the issue. To help people better understand the policy, it is advisable to establish a two-track policy on SNS use for clarification: personal use by general employees and official use as an administrator or a company spokesperson.
1.4. Training & Education
Besides requiring a written agreement and establishing internal regulations regarding the use of SNS, the next thing is to offer sufficient training to help employees fully understand the issue, something which needs to be on a regular basis throughout the hiring procedure and on-the-job training programs. This can be done both offline in groups and also individually via online media offered through the intranet.
1.5. Protecting Confidential Business Information
Leaks of confidential business information through SNS media are extremely serious problems whether accidental or intentional. Employers are therefore advised to include a written agreement when hiring new employees (for example as an annex to the employment contract or as a memorandum) on company policy regarding confidential information and employee responsibility. This written agreement needs to remain valid for a certain period after the employee retires from or otherwise leaves the company.
Companies also need to minimize the number of employees who deal with confidential information. Employees need to be made specifically aware when they are provided with confidential information, and the consequences (including legal) of leaking such information. Should such confidential information actually be leaked, companies should make every effort to retrieve it as much as possible. During meetings, confidential information should be shared only in forms where it cannot be taken away from the meeting
- Follow-up Measures & Major Legal Issues
2.1. Importance of Early Detection
Discovering problems in the early stages is significant in terms of improving effectiveness of follow-up measures. Companies are advised to take such action as posting contact numbers or running an online message board for reporting/consulting on problems or offering advice on detecting them.
Once a problem is recognized, companies should consider the context of the posting which came to be a problem, the relation of the posting to the work, the amount of SNS education done by the company, and the level of damage done to the company or its credibility, etc. Companies should then take one or more of the following actions: ① Apologize to those negatively affected by the posting ② Investigate the details of the incident ③ Identify the causes ④ Take countermeasures ⑤ Take preventive action against recurrence, and promptly make an official announcement on plans to prevent further problems.
2.2. Disciplinary Action
Both management and employees should be subject to disciplinary action if they damage the company or unsettle the organizational culture through inappropriate use of SNS, since managers and staff members share the responsibility to consider employer’s interests under the employment contract. The degree of disciplinary action can be determined according to context, validity, details and purpose of the posting. Disciplinary action is only legitimate if irresponsible SNS use is already stated as the cause for disciplinary action, which should vary according to the gravity of situation.
2.3. Trade Secrets
A trade secret is defined by the Unfair Competition Prevention & Trade Secret Protection Act. Under the current Act, company know-how, human resource management, and scandals among management and employees are rarely recognized as trade secrets.
Moreover, sharing trade secrets through SNS can be determined as a violation of the Act only if such behavior falls in one of the categories of ‘infringement of trade secrets’ defined by the Act. When an SNS posting is related to ‘infringement of trade secrets,’ the publisher of the posting assumes civil and criminal responsibility. Moreover, infringement of trade secrets can also be considered an unlawful act under the Civil Act, and defamation, interference with business, and occupational breach of trust under the Criminal Act.
2.4. Infringement of Personal Information
Under the Personal Information Protection Act, companies are responsible for supervising and managing their managers, staff and in-house subcontractors who are in charge of personal information management. Companies also have the responsibility to compensate for damage to other people caused by their managers, staff and in-house subcontractors who are in charge of personal information management. Companies may also be fined according to the penalty provisions.
In short, if the law is breached by any employee leaking personal information through SNS or etc., both the individual who leaked the information and the company they are employed by are responsible under the Act.
2.5. Other Civil & Criminal Liabilities
If a person inappropriately uses SNS and that use damages a company or other individual, the person is responsible for committing an unlawful act under the Civil Act. Particularly, the Civil Act stipulates a special measure which allows the party whose reputation had been damaged to apply for deletion of the posting and an injunction, besides claiming compensation for damages.
Inappropriate use of SNS can lead to interference with business, defamation, and slander, etc. which are considered criminal offenses. Whether the poster (publisher) is punished or not, companies should deal strongly with malicious intent, and entering a complaint or criminal charge is advised to prevent recurrence of such incidents, depending on the nature of the crime and the degree of damage.
Different actions needed according to types of incident
Companies are advised to take actions according to the type of incident when dealing with company managers or staff, subcontractors, or affiliates who misuse SNS and disadvantage the company. Preventive measures, responses to the misuse and legal issues vary according to many factors: whether the posting was published on the company’s official SNS account or an employee’s personal account; whether the publisher was employed by the company or by an affiliate or subcontractor; and whether the posting is about personal affairs or work.
In particular, different approaches are required for subcontractor employees. It is very difficult to take preventive action and effectively respond to those employees since they are not directly hired by the primary contractor. Companies can stipulate SNS-related details in their subcontracts so that the other party is aware of the issues. For example, companies can request education of the other party’s workers or collection of a written agreement regarding use of SNS from the employees, and include these measures in the contract as responsibilities. It is also useful to include in the contract entities responsible in the event of an incident.