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The IBA GEI REPORT ON SOCIAL MEDIA AND TECHNOLOGY AT WORK: THE USE AND ABUSES OF COMMUNICATION AND MONITORING TECHNOLOGY (THE EMPLOYEE PRIVACY REPORT ) September 2015 Prepared by the International Bar Association Global Employment Institute 1 CONTENTS 1. Introduction 3 2. Why a survey on Social Media and Employee Monitoring in the workplace? 3 3. Goals of the Employee Privacy Report 6 4. Methodology 7 5. General comments on the results of the Survey 8 6. Conclusions About the International Bar Association Global Employment Institute 22 Schedule 1 24 Schedule 2 26 Schedule 1 Introduction The IBA Global Employment Institute (GEI) was established in early Its primary purpose is to develop for multinational companies (multinationals), worldwide institutions and organisations a global and strategic approach to the main legal issues in the human resources and human capital fields (collectively referred to as 'HR'). 1.1 Drawing on the resources and expertise of the IBA membership, the GEI provides a unique contribution in the field of employment, discrimination and immigration law on a diverse range of global issues to private and public organisations throughout the world. The GEI's objective is to enhance the management, performance and productivity of these organisations and help achieve best practices in HR management from a strategic perspective. 1.2 The GEI aspires, through its activities, to be the leading voice and authority on global HR law issues by virtue of having a number of the world's leading labour and employment practitioners in its ranks, the support and resources of the world's largest association of international lawyers, and its involvement in these activities. 2 Why a survey on Social Media and Employee Monitoring in the workplace? 2.1 The GEI's 10/20 Survey of December 2010 presented a number of senior HR managers (over 100 in a large number of multinationals in five continents) with a shortlist of the perceived top ten global HR issues for the next 20 years. On the list was the issue called 'net company'. The respondents were told that this term was shorthand for the arrival of the 'net-gen' and their use of 'social nets' and the like at the workplace. The senior HR managers ranked the 'net company' in the top five. 2.2 This result was no surprise. We can articulate many reasons why multinationals must understand and respond to the 'net company' and 'social media' at the workplace. But before we do that it might be helpful to describe what we mean by the 'net company' and 'social media'. 2.3 The 'net company' is a new organisational model which connects employees and their managers, supervisors and leaders with each other, and helps many businesses connect with customers, vendors, possible job candidates and suppliers. It allows for instant communication among stakeholders not only at local and national levels, but also, in the case of multinationals, on a global scale. 2.4 'Social media' is becoming a clearly defined concept. Broadly speaking it refers to the means of interactions among people in which they create, share and exchange information and ideas in virtual communities and networks. Social media includes magazines, the internet, forums, weblogs, social blogs, microblogging (e.g.twitter), wikis, social networks (such as, Facebook and Linkedin), podcasts, photographs and video rating (such as, Instagram, youtube, Flickr, and Daily Motion), social bookmarking, blogs, picture-sharing, vlogs, wall-postings, , instant 3 messaging, music-sharing, crowd-sourcing and voice over IP (e.g. Skype). 2.5 Armed with our concepts of 'net company' and 'social media' we look at their importance to multinationals. 2.6 To begin with some advantages, the net company and social media offer a multitude of opportunities for improvements in productivity, innovation, knowledge and competitiveness. 2.7 On the other hand, there are several legal and business challenges for employers to handle. For example, an obvious organisational challenge in having employees working online (permanently or temporarily) is the potential for employees to involve themselves with personal or private matters while online. This has self-evident implications for the employer's ability to control time spent working. Thus, the perceived benefits of the net company can be immediately impacted by a reduction in productivity. Yet this is not to say the picture is black and white. The employer may gain through employees developing their IT skills, or avoiding a (genuine) absence through resolving a domestic problem online. 2.8 Another set of challenges arises if the employer decides it wishes to exercise control over the navigation of the web by employees, or over communications between employees or between employees and third parties. A preliminary consideration is the time period and geographic scope of control. For example, the period of control might be limited to working time (whatever that might mean for senior executives!) and the area of control might be solely at the workplace. The next challenge facing the employer is the definitional problem of which communication devices are to be controlled (such as, mobile phones, laptops and other technology hardware) and whether one covers devices not provided by the employer? Then there are legal challenges such as, how can the employer lawfully monitor employee communication? A clash with fundamental employment rights relating to privacy and confidentiality might occur, and if so, how is this to be resolved? 2.9 Returning to the advantages for the employer, the employer might use social media as a work tool providing new possibilities for HR specialists in recruiting and screening etc. Employees can work flexibly and use it to help the branding of their employer. Again a conflict with those fundamental employment rights relating to privacy and confidentiality might arise, and we could add anti-discrimination laws to this duo of laws restricting the freedom of usage by employers We can confidently predict more challenges arising for multinationals as our understanding of the net company evolves. For example, we have witnessed the emergence of employees who choose not only to use the net for their own personal or private social communication, but also to comment on company issues. Some are encouraged to do this. There is nothing new in an employee criticising (or even celebrating) their employer. The novelty is that one negative comment about the employer on a private social net can reach as many people (or even more people) than a comment in a newspaper or during a TV broadcast (or careless talk at the office party!). Contrasted with the 'old ways' of communicating, the net offers the disgruntled or thoughtless employee greater speed and geographic coverage. Employer control is difficult to maintain and there may be no remedy once the horse, as it were, has bolted. Further, the law 4 may not be wholly sympathetic to the aggrieved employer. In its eyes the rights of freedom of speech and privacy for employees have to be balanced and accommodated with the rights of an employer to defend its brand or its reputation or its leadership team, managers and supervisors. Thus, the balance may be struck at a point giving some leeway to the employee. Moreover, the employer may be placed in the invidious position of reconciling the right of the employee to speak out with its duty to protect co-workers and their livelihoods from another employee's adverse comments Putting all of this together we can discern why the respondents to the 10/20 Survey rated this issue as important. Social media presents opportunities but also threats. Further, the employer who believes it can just opt out of social media lives in a fantasy world. Social media and the net company are realities and here to stay for some time. Therefore, multinationals and their advisers need to be aware of the arising issues Our previous survey of 2013 (the '2013 survey') embraced a number of key issues, including the monitoring and use of social media on behalf of various companies and the limits imposed on its use as a result of the duty of loyalty imposed by law and/or the existence of a social media policy Social media was the original focus of our reporting, its prevalence has raised increasing awareness of other areas where technology permits employers to access and share information about employees and employees to do the same about each other or people they work for In consequence, the GEI concluded it would be worthwhile to undertake a revised survey of HR directors and HR lawyers in relation to some of the legal and business aspects of social media and employee monitoring (the 'Survey'). This Report encapsulates the results of the Survey together with the reflections of a roundtable discussion on those results that took place at a special meeting in June 2015 funded by the IBA and organised by the GEI ('the roundtable meeting') The Survey is similar to the 2013 survey with slight variation in the nationality of the respondents and greater emphasis being placed on evolving issues. They include an employer's use of monitoring technology and the impact this has on employee privacy and employer's attitudes towards data security and privacy. We asked about how often there is disciplinary action arising from breach of a company's social media policy. We asked respondents to try to predict future trends, as well as evaluate current experience. Where there are noteworthy differences between corresponding answers to the 2013 survey and the answers to the Survey (2015), we have identified and commented on them. A lack of comment implies the answers in 2013 and 2015 surveys are statistically similar The reader will find in sections 3 and 4 a description of the goals of the Survey and an outline of the methodology of the Survey (including the roundtable meeting) respectively. As will be seen, the Survey principally covers the use (some might say misuse) by employees of social networks whether they be private or personal social networks, or company social networks or blogs. In addition, it covers the use of social media by employers as a tool for HR purposes. 5 2.17 Finally, sections 5 and 6 provide an overview of the results of the Survey and draw some conclusions respectively. 3 Goals of the Employee Privacy Report 3.1 In short, this Report has two goals: to capture some general trends on the current state of the law and the practice of some multinationals with regard to the use of social media and other technology and to make some observations upon them; and to cause HR professionals to examine critically those observations and to relate those general trends to their own experiences with a view to assessing the implications for them. 3.2 Looking at the first goal in more detail, as previously indicated the cornerstone of this Report is the Survey. Thus, the Survey's structure and its coverage reflected this goal. 3.3 In terms of structure, the Survey was founded on two different questionnaires: one completed by HR directors and senior managers of multinational companies, and the other by external HR lawyers. This approach was adopted as there are usually differences not only between what is provided in the law and what is developed by multinationals in their policies but also between the perspectives of managers and lawyers on the same matter. In order to present a more comprehensive view of the current situation of social media at the workplace, this 'Employee Privacy Report' needed to reflect both the legal aspects of this matter (as seen by HR lawyers) and the practices of multinationals (as seen by HR directors). 3.4 In terms of coverage, the two questionnaires had some overlap but some significant differences. 3.5 The principal aim of the questionnaire sent to HR lawyers was to gather information on the specific legal frameworks which govern access to, and use of, social media. Therefore, the main focus of the questions was on how each HR lawyer's national law regulated social media at the workplace with particular reference to: the relevant fundamental employment rights; the extent to which an employer's monitoring of communications is permitted; the legal permissions or processes which govern the employer's use of social media; and the legal sanctions, and incidence of claims before the courts by employees. 3.6 The principal aim of the questionnaire sent to HR directors in multinationals was to survey current attitudes and practice in using (or preventing the use of) social media at work. Therefore, the main focus of the questions was on the employer's regulation of social media including: 6 3.6.1 the practical uses employers have for social media (such as, recruiting, training, employee engagement, and customer relations); whether employers have policies or systems for controlling or monitoring the use of social media; the frequency of disciplinary issues; and the approach to different types of social media. 3.7 It is important to bear in mind that the Survey was not intended to be a 'scientific' survey in the sense of a means to develop an academic or theoretical model of social media at the workplace. 3.8 We received 33 responses from multinationals and the responses from the lawyers covered 30 jurisdictions. 3.9 Please note nothing in this Report is, or is intended to be, legal advice. This Report deals in generalities only. Readers should take specific legal advice addressed to any particular issue they are considering. 4 Methodology 4.1 Copies of the two questionnaires are attached as Schedules 1 and 2. Two distinct lists of questions were prepared by the members of the Working Group (see below) and reviewed by the Council of the GEI in order to evaluate the use of social media at the workplace from an HR perspective. 4.2 Respondents were asked to rate the importance of certain issues in their national law or company policy, their linkage to certain purposes in their national law or company policy, and to evaluate certain aspects of their national law or company policy according to 'yes/no' questions (with scope for providing additional comments). They were also asked to identify relative priorities and future trends to help us identify subjects which might repay specific study over time. This was done online. 4.3 Distribution covered employers of various sizes, the largest being 110,000 and the smallest 150 or so employees. Industries of many kinds, including telecommunications, financial services (insurance, broking, asset management) energy production, real estate chemicals, and professional services were covered. Accordingly, the Survey provides a broadly based snapshot of experiences and attitudes of different kinds and sizes of businesses, which have evolved differing structures and marketplaces. It would be unwise to extrapolate too strongly from the answers provided, for example on an industry-specific basis, but certainly broad trends can be clearly identified. Among those are some continuing differences in the perceived relevance of trends identified by the external lawyers. 4.4 The Council of the GEI appointed a Working Group for the development of this Report. The members of this working group were Sean Nesbitt (Taylor Wessing, United Kingdom), Maria Alexia Aurelio (Aresco, Argentina) and Anders Etgen Reitz (IUNO, Denmark). 4.5 This Working Group, with the coordination of Anders Etgen Reitz (member of the GEI Council), designed the questionnaires and contacted 7 lawyers from different countries. These lawyers were asked to contact multinationals headquartered in their countries with a view to combining the views of those multinationals with their own when answering the questionnaire. A list of these law firms and a list of the number of multinationals per country can be found in Schedule An initial draft of this Report was submitted to representatives of businesses and other organisations, experts, and some members of the GEI Council at a meeting in June 2015 in London: the roundtable meeting noted at 2.14 above. The meeting was sponsored by the IBA. Some of the conclusions of that meeting have been included in this Report. 4.7 The GEI Council wishes to convey its gratitude to the HR directors and HR lawyers (and the multinationals to whom they spoke) for their participation and interest in the development of the Survey. The GEI Council also wishes to thank the Working Group for their hard work throughout the whole of this project. In addition, the GEI Council would like to record its gratitude to the participants at the roundtable meeting for their insightful contributions on the initial draft of this Report. Finally, the GEI Council also wishes to express its thanks to Charlotte Jackson (assistant at Taylor Wessing), who edited substantial parts of the Schedules. 5 General comments on the results of the Survey 5.1 Comments on lawyers' responses to the questionnaire Duty of loyalty With regard to the limits on the use of social media, the majority of respondents considered that employees in their country had a duty of loyalty by law or a restriction under company policies. Interestingly the size of the majority depended upon when social media was being used (inside or outside of working hours) and for what purpose (private or business). The smallest majority (77.4 per cent) reported that the duty or restriction extended to private purposes outside of working hours; and highest percentage (90 per cent) for private and business purposes during working hours. Many European countries have, by law, a general duty of loyalty owed by the employee to the employer, which defines the extent of the employee's obligations relating to the use of social media. In addition to the general duty, it is commonplace to have policies which further regulate and circumscribe the use of equipment during work hours in addition to the legal duty Regarding whether it makes a difference if employees access to social media is through company hardware or private devices, a bare majority (53.1 per cent) of surveyed lawyers replied that who was the owner of the equipment did 'make a difference'. Another majority (65.6 per cent) reported that there is a difference between accessing social media internally, for example, as an integrated part of the company's intranet, as opposed to externally. This suggests that legislators 8 perceive that it is more appropriate or convenient to control the misuse of internal systems than the misuse of external systems A high percentage of all of the surveyed lawyers (68.7 per cent) believed that where the law or employment terms establish a duty of loyalty there is no difference between the duty's application to employee communications via social media and elsewhere (such as, face-to-face). This suggests that the medium of communication does not determine the application of the duty. Thus, information that is communicated or posted in any social media appears to be subject to the same duty as if the information had been made available elsewhere. For example, all other things being equal it seems an employee who is bound by a non-disclosure agreement (NDA) and yet reveals trade secrets through social media, commits a breach of that agreement in the same way that he or she would do so through communicating the trade secrets in a face-to-face conversation (assuming no specific provisions in the NDA exempting the employee from social media communications). Even so there remains virtue in NDAs being drafted with sufficient breadth to catch disclosures through social media. That said, in the 2013 survey 85.4 per cent of surveyed lawyers confirmed that the duty of loyalty differed on social media than other places, indicating that with time, there is some difference in the legal treatment of social media as the law becomes more sophisticated (i.e. it incorporates social media within the duty) Importantly lawyers confirmed
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